Exhibit 99.1
Execution Copy
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as
of July 15, 2004, by and between Xxxxxxx International
Limited, a company incorporated under the laws of The
Bahamas (the "Company"), and Istithmar PJSC, a company
organized under the laws of Dubai (the "Purchaser").
A. The Company desires to issue and sell to the Purchaser, and the
Purchaser desires to purchase from the Company, 3,000,000 ordinary shares (the
"Company Shares") of the Company, par value $0.001 per share, for an aggregate
purchase price of $153,750,000 in cash ($51.25 per share).
B. Contemporaneously with the execution and delivery of this
Agreement, the Purchaser has entered into stock purchase agreements (the
"Secondary Purchase Agreements") with certain other shareholders of the
Company (the "Selling Shareholders")providing for the purchase of an aggregate
of 1,500,000 ordinary shares (the "Secondary Shares") of the Company, par
value $0.001 per share, at an aggregate purchase price of $71,250,000 in cash
($47.50 per share). The Company Shares and the Secondary Shares are referred
to collectively as the "Shares".
C. At the Closing (as defined in Section 2 herein), (i) the Company
and the Purchaser will execute and deliver a registration rights agreement
(the "Registration Rights Agreement"), in the form attached hereto as Exhibit
A, and a corporate governance agreement (the "Corporate Governance
Agreement"), in the form attached hereto as Exhibit B, (ii) the Company, the
Purchaser and certain other shareholders of the Company will execute and
deliver a letter agreement (the "Letter Agreement"), in the form attached
hereto as Exhibit C, and (iii) the Purchaser and World Leisure Group Limited
will execute and deliver a letter agreement (the "WLG Letter Agreement") in
the form attached hereto as Exhibit D. The Secondary Purchase Agreements, the
Registration Rights Agreement, the Corporate Governance Agreement, the Letter
Agreement and the WLG Letter Agreement are referred to collectively as the
"Ancillary Agreements".
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Agreement to Sell and Purchase the Company Shares. At the
Closing, the Company will, subject to the terms and conditions of this
Agreement, sell to the Purchaser, and the Purchaser will, subject to the terms
and conditions of this Agreement, purchase from the Company, the Company
Shares for an aggregate purchase price of $153,750,000 in cash (the "Purchase
Price") ($51.25 per share).
2. Delivery of the Company Shares at the Closing.
2.1 The closing of the sale to, and purchase by, the Purchaser of
the Company Shares (the "Closing") shall take place at the offices of Cravath,
Swaine & Xxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m.
on the later of July 21, 2004, or the second business day following the
satisfaction (or, to the extent permitted, waiver by the parties entitled to
the benefits thereof) of all the conditions set
1
forth in this Agreement, or at such other time and place as the Company and
the Purchaser may mutually agree in writing (the "Closing Date"). At the
Closing, the Company shall deliver to the Purchaser one or more certificates
evidencing the Company Shares against delivery to the Company of the Purchase
Price by wire transfer of immediately available funds to an account that the
Company will designate in writing to the Purchaser at least two business days
prior to the Closing Date.
2.2 The Company's obligation to complete the purchase and sale of
the Company Shares and deliver the stock certificate(s) evidencing the Company
Shares to the Purchaser at the Closing shall be subject to the following
conditions, any one or more of which may be waived by the Company: (a) receipt
by the Company of immediately available funds in the full amount of the
Purchase Price; (b) the accuracy of each of the representations and warranties
of the Purchaser herein qualified by reference to materiality and the accuracy
in all material respects of each of the representations and warranties of the
Purchaser herein that are not so qualified, in each case as of the date of
this Agreement and as of the Closing Date as if restated on and as of the
Closing Date; (c) the fulfillment by the Purchaser in all material respects of
each of its undertakings herein required to be fulfilled prior to the Closing;
(d) receipt by the Company of a certificate signed by an executive officer of
the Purchaser confirming the matters described in the preceding clauses (b)
and (c); (e) the execution and delivery of each Ancillary Agreement by each of
the parties thereto (other than the Company); (f) the receipt of all
applicable governmental, administrative or regulatory consents and approvals
necessary for the consummation of the transactions contemplated by this
Agreement and the transactions contemplated to be consummated at or promptly
following the Closing under the Ancillary Agreements, including approval by
the UK Gaming Board and any other gaming authority with jurisdiction over the
Company (the "Regulatory Approvals"), (g) no Law (as hereinafter defined) or
other legal restraint or prohibition preventing the consummation of
transactions contemplated by this Agreement or any Ancillary Agreement shall
be in effect and (h) the concurrent closing of the purchase of the Secondary
Shares in accordance with the terms of the Secondary Purchase Agreements.
2.3 The Purchaser's obligation to accept delivery of such stock
certificate(s) and to pay for the Company Shares shall be subject to the
following conditions, any one or more of which may be waived by the Purchaser:
(a) receipt by the Purchaser of the stock certificate(s) evidencing the
Company Shares (registered in the names of the Purchaser or of such
broker-dealers as may be designated by Purchaser as its nominee at least two
business days prior to the Closing Date); (b) the accuracy of each of the
representations and warranties of the Company herein that are qualified by
reference to materiality or Company Material Adverse Effect (as defined below)
and the accuracy in all material respects of each of the representations and
warranties of the Company herein that are not so qualified, in each case as of
the date of this Agreement and as of the Closing Date as if restated on and as
of the Closing Date; (c) the fulfillment by the Company in all material
respects of each of its undertakings herein required to be fulfilled prior to
the Closing; (d) receipt by the Purchaser of a certificate signed by the chief
financial officer of the Company confirming the matters described in the
preceding clauses (b) and (c); (e) the execution and delivery of each
Ancillary Agreement by each of the parties thereto (other than the Purchaser);
(f) the receipt of the Regulatory
2
Approvals; (g) no Law or other legal restraint or prohibition preventing the
consummation of the transactions contemplated by this Agreement or any
Ancillary Agreement shall be in effect and (h) the concurrent closing of the
purchase of the Secondary Shares in accordance with the terms of the Secondary
Purchase Agreements.
3. Representations, Warranties and Covenants of the Company. In
consideration for the Purchaser's agreement to enter into this Agreement and
the Ancillary Agreements and to purchase the Company Shares from the Company
and the Secondary Shares from the Selling Shareholders, the Company hereby
represents and warrants to, and covenants with, the Purchaser as follows:
3.1 Organization and Qualification. The Company and each of its
subsidiaries is a company duly organized and validly existing under the laws
of the jurisdiction in which it is incorporated, except, with respect to the
Company's subsidiaries, where failures to be duly organized and validly
existing individually or in the aggregate, have not had and would not be
reasonably likely to have a Company Material Adverse Effect, and is qualified
to do business as a foreign corporation in each jurisdiction in which
qualification is required, except where failures to so qualify individually or
in the aggregate, have not had and would not be reasonably likely to have a
Company Material Adverse Effect. The term "Company Material Adverse Effect"
means any change, effect, event, occurrence, state of facts or development
that (a) is material and adverse to the assets, liabilities, business,
condition (financial or otherwise) or results of operations of the Company and
its subsidiaries taken as a whole, or (b) will prevent or materially delay
fulfillment of the closing conditions set forth in Section 2.3 or the
Company's ability to perform any of its obligations under this Agreement or
any Ancillary Agreement, provided, however, that any change, effect, event,
occurrence, state of facts or development relating generally to the
international venue-based entertainment industry (except to the extent such
change, effect, event, occurrence, state of facts or development has a
disproportionate effect on the Company and its subsidiaries as compared to
other persons in such industry) shall not be considered when determining
whether a Company Material Adverse Effect has occurred under clause (a) of
this definition.
3.2 Validity. The execution, delivery and performance by the Company
of this Agreement and each Ancillary Agreement to which it is a party and the
consummation of the transactions contemplated hereby and the transactions
contemplated to be consummated at or promptly following the Closing under the
Ancillary Agreements have been duly authorized by all necessary action on the
part of the Company. This Agreement has been duly executed and delivered by
the Company and assuming the valid execution and delivery thereof by the
Purchaser constitutes, and each Ancillary Agreement, when duly executed and
delivered by the Company and assuming valid execution and delivery thereof by
the other parties thereto, will constitute, a legal, valid and binding
obligation of the Company enforceable against it in accordance with its terms.
3.3 Issuance, Sale and Delivery of the Shares. The Company Shares
have been duly authorized for issuance and sale to the Purchaser and, when
issued, delivered and paid for in the manner set forth in this Agreement, will
be duly authorized, validly issued, fully paid and nonassessable. The
Secondary Shares are duly authorized, validly issued, fully paid and
nonassessable. No further approval or authority of the
3
stockholders or the board of directors of the Company (the "Board of
Directors") will be required for the consummation of the transactions
contemplated by this Agreement or the transactions contemplated to be
consummated at or promptly following the Closing under the Ancillary
Agreements (including the issuance and sale of the Company Shares as
contemplated herein).
3.4 Compliance with Other Instruments. Neither the execution,
delivery or performance of this Agreement or any Ancillary Agreement, nor the
consummation of the transactions contemplated hereby, will (a) violate any
provision of the memorandum of association and articles of association or
similar governing document of the Company or any of its subsidiaries, (b)
result in the creation of any material lien, security interest or encumbrance
upon any assets of the Company or any of its subsidiaries, (c) conflict with,
result in the breach or violation of, or constitute, either by itself or upon
notice or the passage of time or both, a default under any material agreement,
mortgage, deed of trust, lease, franchise, license, indenture, permit or other
instrument to which the Company or any of its subsidiaries is a party or by
which the Company, any of its subsidiaries or any of their respective
properties may be bound, or (d) violate in any material respect any Law
applicable to the Company, any of its subsidiaries or any of their respective
properties.
3.5 Consents. No consent, approval, license, permit, order or
authorization of, or material registration, declaration or filing with, any
transnational, federal, state, local or foreign government, or any court of
competent jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, or any
national stock exchange or national quotation system on which securities
issued by the Company or any of its subsidiaries are listed or quoted (a
"Governmental Entity") or any other person is required to be obtained or made
by the Company or any of its subsidiaries in connection with the Company's
execution, delivery and performance of this Agreement or any Ancillary
Agreement or its consummation of the transactions contemplated hereby or
contemplated to be consummated at or promptly following the Closing under the
Ancillary Agreements, other than (a) approval by the UK Gaming Board of the
transactions contemplated hereby and the transactions contemplated to be
consummated at or promptly following the Closing under the Ancillary
Agreements; (b) the filing of a Supplemental Listing Application with the New
York Stock Exchange, Inc. with respect to the issuance of the Company Shares;
and (c) other items disclosed in a letter from the Company delivered to the
Purchaser prior to the execution of this Agreement. The approval described in
clause (a) of the preceding sentence is the only consent, approval, license,
permit, order or authorization of, or registration, declaration or filing
with, any gaming authority required to be made by the Purchaser in connection
with the Purchaser's execution, delivery and performance of this Agreement and
the Ancillary Agreements and its consummation of the transactions contemplated
hereby and thereby.
3.6 Private Offering. None of the Company, its subsidiaries or their
representatives has issued, sold or offered any security of the Company to any
person under circumstances that would cause the sale of the Company Shares, as
contemplated by this Agreement, to be subject to the registration requirements
of the Securities Act of 1933, as amended (the "Securities Act"). None of the
Company, its subsidiaries or their
4
representatives will offer the Company Shares or any part thereof or any
similar securities for issuance or sale to, or solicit any offer to acquire
any of the same from, anyone so as to make the issuance and sale of the
Company Shares subject to the registration requirements of Section 5 of the
Securities Act. Assuming the representations of Purchaser contained in Section
4.5 and Section 4.6 are true and correct, the sale and delivery of the Company
Shares hereunder are exempt from the registration and prospectus delivery
requirements of the Securities Act.
3.7 Capitalization. The authorized capital stock of the Company
consists solely of 250,000,000 ordinary shares, par value $0.001 per share
(the "Company Ordinary Shares"), and 100,000,000 preference shares, par value
$ 0.001 per share (together with the Company Ordinary Shares, the "Company
Capital Shares"). At the close of business on July 14, 2004, (i) 31,674,079
Company Ordinary Shares were issued and outstanding, (ii) 7,072,029 Company
Ordinary Shares were held by the Company in its treasury, (iii) 4,005,441
Company Ordinary Shares were subject to outstanding options to purchase
Company Ordinary Shares granted to employees, officers and directors of the
Company and its subsidiaries ("Stock Options") and 1,037,187 additional
Company Ordinary Shares were reserved for issuance pursuant to share plans for
the benefit of employees, officers and directors of the Company and its
subsidiaries and (iv) 3,949,169 Company Ordinary Shares were reserved for
issuance pursuant to the terms of the Company's outstanding 2.375% Convertible
Senior Subordinated Notes due 2024. Except as set forth above, at the close of
business on July 14, 2004, no shares of capital stock or other voting
securities of the Company were issued, reserved for issuance or outstanding.
Except set forth above, there are not any bonds, debentures, notes or other
indebtedness of the Company having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any matters on which
holders of Company Capital Shares may vote ("Voting Company Debt"). Except as
set forth above, as of the date of this Agreement, there are not any options,
warrants, rights, convertible or exchangeable securities, "phantom" stock
rights, stock appreciation rights, stock-based performance units, commitments,
contracts, arrangements or undertakings of any kind to which the Company or
any of its subsidiaries is a party or by which any of them is bound (i)
obligating the Company or any of its subsidiaries to issue, deliver or sell,
or cause to be issued, delivered or sold, additional shares of capital stock
or other equity interests in, or any security convertible or exercisable for
or exchangeable into any capital stock of or other equity interest in, the
Company or of any of its subsidiaries or any Voting Company Debt or (ii)
obligating the Company or any of its subsidiaries to issue, grant, extend or
enter into any such option, warrant, call, right, security, commitment,
contract, arrangement or undertaking. As of the date of this Agreement, there
are not any outstanding contractual obligations of the Company or any of its
subsidiaries to repurchase, redeem or otherwise acquire any shares of capital
stock of the Company or any of its subsidiaries.
3.8 SEC Filings. The Company has made available to the Purchaser
copies of the following documents (collectively, the "Available Documents")
(i) the Company's Annual Report on Form 20-F for the fiscal year ended
December 31, 2003 (the "2003 20-F"), (ii) each Report on Form 6-K filed with
or furnished to the Securities and Exchange Commission ("SEC") by the Company
on or after March 30, 2004 and
5
(iii) the Company's Registration Statement on Form F-3 filed with the SEC on
July 2, 2004. The Company has timely filed all reports, registration
statements, proxy statements and other materials, together with any amendments
required to be made with respect thereto, that were required to be filed with
the SEC under the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act") from and after January 1, 2003 (all such reports
and statements are collectively referred to herein as the "SEC Filings"). As
of their respective dates, except to the extent the information in any SEC
Filing has been revised or superseded by a later filed SEC Filing, the SEC
Filings complied in all material respects with the Securities Act or the
Exchange Act, as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to such SEC Filing, and did not and, except
to the extent the information in any SEC Filing has been revised or superseded
by a later filed SEC Filing, do not as of the date hereof contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. As of
the date hereof, no subsidiary of the Company is subject to the periodic
reporting requirements of the Exchange Act. The consolidated financial
statements of the Company (including the notes thereto) included in the
Available Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
with respect thereto, have been prepared in accordance with United States
generally accepted accounting principles ("GAAP") (except, in the case of
unaudited statements, as permitted by the rules and regulations under the
Exchange Act) applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto) and fairly present the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the consolidated results of their
operations and cash flows for the periods shown (except for the omission of
footnotes and subject, in the case of unaudited statements, to normal year-end
audit adjustments).
3.9 Absence of Certain Changes. Except for transactions contemplated
by this Agreement or the Ancillary Agreements or matters disclosed in the SEC
Filings filed and made publicly available prior to the date of this Agreement,
since December 31, 2003, the Company and its subsidiaries have conducted their
business in the ordinary and usual course, and there has not been any of the
following:
(i) any change or amendment to the memorandum of association and
articles of association of the Company;
(ii) other than pursuant to the offering contemplated by the
Offering Memorandum referenced in Section 4.7, any issuance, sale,
reclassification, combination or split, or any direct or indirect
purchase, redemption or other acquisition of any capital stock or other
voting securities of the Company;
(iii) any dividend or other distribution declared, set aside, paid
or made with respect to any capital stock or other voting securities of
the Company;
(iv) any material change in the financial accounting methods,
principles or practices of the Company and its subsidiaries for financial
accounting purposes, except as required by GAAP or applicable Law;
6
(v) any change, effect, event, occurrence, state of facts or
development that, individually or in the aggregate, constitutes or would
be reasonably likely to constitute a Company Material Adverse Effect; or
(vi) any commitment or agreement to do any of the foregoing.
3.10 Undisclosed Liabilities. To the knowledge of the Company, the
Company and its subsidiaries have no liabilities or obligations of any nature,
whether or not accrued, absolute, contingent, liquidated or unliquidated or
otherwise, whether due or to become due and whether or not required by GAAP to
be set forth on the consolidated balance sheet of the Company and its
consolidated subsidiaries, except for liabilities or obligations (i) reflected
or disclosed in the financial statements (or in the notes thereto) contained
in the SEC Filings filed and made publicly available prior to the date of this
Agreement or (ii) that may have arisen in the ordinary course of business and
consistent with past practice since December 31, 2003 and that, individually
or in the aggregate, do not constitute and would not be reasonably likely to
constitute a Company Material Adverse Effect.
3.11 Compliance with Applicable Laws. The Company and its
subsidiaries are in compliance with all Laws applicable to their businesses
and assets, except for instances of noncompliance that, individually or in the
aggregate, do not constitute and would not be reasonably likely to constitute
a Company Material Adverse Effect.
3.12 Transactions with Related Persons. Except (a) as disclosed in
the SEC Filings (including the exhibits thereto) filed and made publicly
available prior to the date of this Agreement, (b) for (i) compensation and
employee benefit arrangements of the nature of those included in the aggregate
compensation amount disclosed in the aggregate in the 2003 20-F and (ii)
participation in employee benefit or compensation plans generally available to
employees or senior executives and/or directors of the Company as a group,
including participation in the Plans (as such term is defined in the 2003
20-F) or (c) for other items disclosed in a letter from the Company delivered
to the Purchaser prior to the execution of this Agreement, there are, and
during the three years prior to the date of this Agreement, there have been,
no contracts, promises, commitments, arrangements, relationships or
understandings, and during the three years prior to the date of this
Agreement, there has been no business transaction or purchase or sale of
assets, in each case between the Company or any of its subsidiaries and any
Related Person (as defined below) that would be required to be disclosed in
the SEC Filings pursuant to Items 402 or 404 of Regulation S-K if the Company
were required to disclose information required by those items without regard
to Instruction 9 to Paragraph (a) of Item 404 or Instruction 1 to Item 404.
"Related Person" means any officer, director or affiliate of the Company, any
person who has a family relationship (as defined in Item 401(d) of Regulation
S-K) with any such person, or any associate of any such person.
3.13 Selling Shareholder Representations and Warranties. Each of the
representations and warranties made by the Selling Shareholders in each
Secondary Purchase Agreement is true and correct as of the date of such
Secondary Purchase
7
Agreement and shall be true and correct as of the date of the closing of the
transactions contemplated thereby.
4. Representations, Warranties and Covenants of the Purchaser. The
Purchaser represents and warrants to, and covenants with, the Company as
follows:
4.1 Organization. The Purchaser is a company duly organized and
validly existing under the laws of Dubai and is qualified to do business as a
foreign corporation in each jurisdiction in which qualification is required,
except where failures to so qualify individually or in the aggregate, are not
reasonably likely to prevent or materially delay fulfillment of the closing
conditions set forth in Section 2.2 or the Purchaser's ability to perform its
obligations under this Agreement or the Ancillary Agreements.
4.2 Validity. The execution, delivery and performance by the
Purchaser of this Agreement and each Ancillary Agreement and the consummation
of the transactions contemplated hereby or the transactions contemplated to be
consummated at or promptly following the Closing under the Ancillary
Agreements have been duly authorized by all necessary action on the part of
the Purchaser. This Agreement has been duly executed and delivered by the
Purchaser and assuming the valid execution and delivery thereof by the Company
constitutes, and each Ancillary Agreement, when duly executed and delivered by
the Purchaser and assuming valid execution and delivery thereof by the other
parties thereto, will constitute, a legal, valid and binding obligation of the
Purchaser enforceable against it in accordance with its terms.
4.3 Compliance with Other Instruments. Neither the execution,
delivery or performance of this Agreement or any Ancillary Agreement, nor the
consummation of the transactions contemplated hereby, will (a) violate any
provision of the memorandum of association and articles of association of the
Purchaser, (b) result in the creation of any material lien, security interest
or encumbrance upon any assets of the Purchaser, (c) conflict with, result in
the breach or violation of, or constitute, either by itself or upon notice or
the passage of time or both, a default under any material agreement, mortgage,
deed of trust, lease, franchise, license, indenture, permit or other
instrument to which the Purchaser is a party or by which the Purchaser or any
of its properties may be bound or (d) violate any Law applicable to the
Purchaser or any of its properties.
4.4 Consents. No consent, approval, license, permit, order or
authorization of, or material registration, declaration or filing with, any
Governmental Entity or any other person is required to be obtained or made by
the Purchaser in connection with the Purchaser's execution, delivery and
performance of this Agreement or any Ancillary Agreement or its consummation
of the transactions contemplated hereby or the transactions contemplated to be
consummated at or promptly following the Closing under the Ancillary
Agreements, other than (a) compliance with and filings under Section 13 of the
Exchange Act and (b) approval by the UK Gaming Board of the transactions
contemplated hereby and the transactions contemplated to be consummated at or
promptly following the Closing under the Ancillary Agreements.
4.5 Ability to Protect Its Own Interests and Bear Economic Risks. By
reason of the business and financial experience of its management, the
Purchaser has the
8
capacity to evaluate the risks and merits of, and make an informed decision
with regard to, an investment in the Company and the transactions contemplated
by this Agreement. The Purchaser is able to bear the economic risk of an
investment in the Company Shares, and has an adequate income independent of
any income produced from an investment in the Company Shares and has
sufficient net worth to sustain a loss of all of its investment in the Company
Shares without economic hardship if such a loss should occur. The Purchaser
recognizes that an investment in the Company Shares involves a high degree of
risk, including a risk of total loss of Purchaser's investment, and the
Purchaser has full cognizance of and understands all of the risk factors
related to Purchaser's purchase of the Company Shares, including those set
forth under the heading "Risk Factors" in the Company's registration statement
on Form F-3 filed with the SEC on July 2, 2004. The Purchaser has, with
respect to all matters relating to this Agreement and the offer and sale of
the Company Shares, relied solely upon the advice of the Purchaser's own
counsel and has not relied upon or consulted the counsel to the Company.
4.6 Reliance on Exemptions; Acquisition for Own Account. (a) The
Purchaser understands that the Company Shares are being offered and sold to
Purchaser in reliance upon specific exemptions from the registration
requirements of Federal and state securities laws and that the Company is
relying upon the truth and accuracy of, and Purchaser's compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of Purchaser to acquire the Company Shares.
(b) The Purchaser is acquiring the Company Shares for its own
account and for investment purposes only and with no present intention of
distributing any of the Company Shares or any arrangement or understanding
with any other persons regarding the distribution of the Company Shares. The
Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the Company Shares except in compliance
with the Securities Act (including pursuant to an exemption from the
registration requirements thereof), the rules and regulations thereunder and
any applicable state securities laws. The Purchaser has, in connection with
its decision to purchase the Company Shares, not relied upon any
representations or other information (whether oral or written) other than the
representations and warranties of the Company contained herein.
4.7 Access to Information. The Company has made available to the
Purchaser copies of the Available Documents filed on or prior to July 6, 2004
and the Company's Offering Memorandum dated June 14, 2004, relating to the
sale of depositary receipts made in accordance with Regulation S under the
Securities Act, and the Purchaser has had adequate opportunity to ask
questions of, and receive answers from, the Company's officers, employees,
agents, accountants, and representatives concerning the Company's business,
operations, financial condition, assets, liabilities, and all other matters
relevant to its investment in the Shares.
4.8 Restrictions on Dispositions. The Purchaser understands and
agrees that the Company Shares have not been, and will not upon issuance be
registered
9
under the Securities Act, and each certificate or other document evidencing
any of the Company Shares shall be endorsed with the legend in substantially
the form set forth below, as well as any other legends required by applicable
law. The Purchaser covenants that the Purchaser shall not transfer the Company
Shares represented by any such certificate without complying with the
restrictions on transfer described in the legends endorsed on such certificate
and understands that the Company shall refuse to register any transfer of
Company Shares not complying with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY NOT BE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO
AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH
ACT AND SUCH LAWS.
5. Termination.
5.1 Notwithstanding anything contained herein to the contrary, this
Agreement may be terminated, and the transactions contemplated hereby
abandoned, as follows:
(a) by mutual written consent of the Company and Purchaser; and
(b) by the Company or Purchaser, if the Closing does not occur
by August 31, 2004; provided, however, that the right to terminate
this Agreement shall not be available to any party whose failure to
fulfill any covenant or obligation under this Agreement has been the
cause of, or resulted in, the failure of the Closing to occur on or
before such date.
5.2 Consequences of Termination. In the event of termination of this
Agreement pursuant to Section 5.1, this Agreement shall become void and of no
further force or effect, except for this Section 5.2. Nothing in this Section
5 or elsewhere in this Agreement shall be deemed to impair the right of either
party to compel specific performance by the other party of its obligations
under this Agreement. Nothing in this Section 5 shall be deemed to release
either party from any liability for any breach by such party of the terms and
provisions of this Agreement.
6. Survival of Representations and Warranties and Covenant; Certain
Remedies. (a) Notwithstanding any investigation made by any party to this
Agreement, (i) the representations and warranties made by the Company in
Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7 and by the Purchaser in Sections
4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7 and 4.8 shall survive the Closing without
limitation as to time and (ii) all other representations and warranties made
by the Company and the Purchaser herein and in the certificates delivered
pursuant hereto shall survive for a period of 24 months following the Closing.
Any covenant or undertaking in this Agreement contemplating performance by any
party following the Closing shall survive in accordance with its terms.
10
(b) The Company acknowledges and agrees that (i) the Purchaser is
purchasing the Secondary Shares in reliance on the representations and
warranties made by the Company in this Agreement and the Purchaser shall be
deemed to have acquired the Secondary Shares from the Company for the purpose
of determining the remedies, if any, available to the Purchaser hereunder for
a breach of any applicable provision of this Agreement and (ii) it has made
use of the means and instrumentalities of United States interstate commerce
and of the United States mails in connection with the transactions
contemplated by this Agreement and that the provisions of the Securities Act
(including its antifraud provisions) shall be applicable to the purchase and
sale of the Shares. The Company shall be subrogated to all of the rights of
the Purchaser with respect to any amount paid by the Company as a result of
any breach of any of the representations and warranties made by the Selling
Shareholders in any Secondary Purchase Agreement.
7. Reasonable Best Efforts. The Company and the Purchaser will each
use its reasonable best efforts to satisfy the closing conditions prior to
August 31, 2004, including the execution and delivery of each Ancillary
Agreement, and to consummate the transactions contemplated hereby.
8. Broker's Fee. There is no broker, investment banker, financial
advisor, finder or other person which has been retained by or is authorized to
act on behalf of any party hereto who might be entitled to any fee or
commission for which any other party hereto will be liable in connection with
the execution of this Agreement or the transactions contemplated hereby.
9. Notices. All notices, requests and other communications to any
party hereunder shall be in writing and shall be deemed given (i) when
delivered, if delivered in person, (ii) when sent by facsimile (provided the
fax is promptly confirmed by telephone confirmation thereof), (iii) when sent
by email (provided the email is promptly confirmed by telephone confirmation
thereof) and (iv) two business days following sending by overnight delivery by
an internationally recognized overnight courier, in each case, to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
9):
(a) if to the Company, to:
Xxxxxxx International Limited
P.O. Box N-4777
Nassau, The Bahamas
Attention: General Counsel
Facsimile: (000) 000-0000
Email: Xxxxxxx.Xxxxxx@xxxxxxx.xxx
with a copy to:
Cravath, Swaine & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
00
Xxxxxx Xxxxxx xx Xxxxxxx
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Email: XXxxxxxx@xxxxxxx.xxx
(b) if to the Purchaser, to:
Istithmar PJSC
Emirates Towers, Xxxxx 00
Xxxxxx Xxxxx Xxxx
PO Box 17000
Dubai, United Arab Emirates
Attention: Chief Executive Officer
Facsimile: x000 0 000 0000
Email: xxxx@xxxxxxxxx.xx
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Email: XXxxxxxxxx@xxxx.xxx
or to such other person at such other place as the Company or the Purchaser
shall designate to the other party in writing.
10. Legends. The Company shall remove the legend described in
Section 4.8 from certificates representing the Company Shares (and any similar
legend from any certificates representing the Secondary Shares) if the Shares
represented thereby are sold pursuant to an effective registration statement
under the Securities Act or there is delivered to the Company such
satisfactory evidence, which may include an opinion of independent counsel, as
may reasonably be requested by the Company, to confirm that neither such
legend nor the restrictions on transfer set forth therein are required to
ensure that transfers of such Shares will not violate the registration and
prospectus delivery requirements of the Securities Act.
11. Publicity. Except to the extent required by applicable Law,
neither party shall, without the prior written consent of the other party
hereto, which consent shall not be unreasonably withheld or delayed, make any
public announcement or issue any press release with respect to the
transactions contemplated by this Agreement. Prior to making any public
disclosure with respect to the transactions contemplated by this Agreement
required by applicable Law, the disclosing party shall use reasonable efforts
to consult with the other party hereto in advance thereof and shall use its
reasonable efforts to reach an agreement with the other party as to the
content and timing of such public announcement or press release.
12
12. Assignment. This Agreement and the rights and obligations
hereunder shall not be assignable or transferable by either party without the
prior written consent of the other party hereto. Any attempted assignment in
violation of this Section 12 shall be void.
13. No Third-Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their permitted assigns and nothing herein
expressed or implied shall give or be construed to give to any person, other
than the parties hereto and such assigns, any legal or equitable rights
hereunder.
14. Amendment. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Purchaser.
The observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively) only with the written
consent of the Company and the Purchaser.
15. Interpretation; Exhibits; Certain Definitions. (a) When a
reference is made in this Agreement to a Section, Subsection or Exhibit, such
reference shall be to a Section or Subsection of or an Exhibit to, this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". The words "hereof", "herein", "hereto",
"hereby" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The term "or" is not exclusive. The word "extent"
in the phrase "to the extent" shall mean the degree to which a subject or
other thing extends, and such phrase shall not mean simply "if". The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms. Any agreement or instrument defined or
referred to herein or in any agreement or instrument that is referred to
herein means such agreement or instrument as from time to time amended,
modified or supplemented. References to a person are also to its permitted
successors and assigns.
(b) For all purposes hereof:
"affiliate" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person.
"associate" of any person means (i) any person (other than the
Company or any of its subsidiaries) of which such first person is an
officer or partner or is, directly or indirectly, the beneficial
owner of 10% or more of any class of equity securities, (ii) any
trust or other estate in which such first person has a substantial
beneficial interest or as to which such first person serves as
trustee or in a similar fiduciary capacity, and (iii) any relative
or spouse of such first person, or any relative of such spouse, who
has the same home as such first person or who is a director or
officer of the Company or any of its subsidiaries.
13
"Law" means any law, treaty, statute, ordinance, code, rule,
regulation, judgment, decree, order, writ, award, injunction,
authorization or determination enacted, entered, promulgated,
enforced or issued by any Governmental Entity.
"person" means any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, Governmental Entity
or other entity.
"subsidiary" of any person means another person, (i) an amount
of the voting securities, other voting ownership or voting
partnership interests of which is sufficient to elect at least a
majority of its Board of Directors or other governing body or (ii)
50% or more of the equity interests of which, is owned directly or
indirectly by such first person or by another subsidiary of such
first person.
16. Entire Agreement. This Agreement, the Ancillary Agreements and
the Confidentiality Agreement dated June 28, 2004 between the Company and the
Purchaser contain the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings relating to such subject matter. None of the
parties shall be liable or bound to any other party in any manner by any
representations, warranties or covenants relating to such subject matter
except as expressly set forth herein or in the Ancillary Agreements.
17. Severability. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
any conflicts of law provisions thereof.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
20. Jurisdiction. (a) Each party inter se irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern
District of New York, solely for the purposes of any suit, action or other
proceeding arising out of this Agreement, any Ancillary Agreement or any
transaction contemplated hereby or thereby. Each party agrees to commence any
such action, suit or proceeding either in the United States District Court for
the Southern District of New York or if such suit, action or other proceeding
may not be brought in such court for jurisdictional reasons, in the Supreme
Court of the State of New York, New York County. Each of the parties hereto
further irrevocably consents, and shall cause each of its affiliates to
irrevocably consent, to the service of process in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, return receipt requested, to such party at its address as
provided for notices hereunder. Each party irrevocably and unconditionally
14
waives any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement, any Ancillary Agreement or the transactions
contemplated hereby and thereby in (i) the Supreme Court of the State of New
York, New York County, or (ii) the United States District Court for the
Southern District of New York, and hereby and thereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(b) The Purchaser confirms that (i) it is not a party to any
agreement with the United States of America relating in any way to the
immunity of the Purchaser from jurisdiction of courts, suit, execution upon a
judgment, attachment prior to judgment or in aid of execution upon a judgment
or any other legal process and (ii) it is, under the law of Dubai, subject to
civil and commercial law with respect to its obligations under this Agreement
and has agreed not to assert the defense of immunity, on the grounds of
sovereignty or otherwise, in respect of any suit, action or proceeding arising
out of or relating to claims under this Agreement or any Ancillary Agreement,
or the consummation of the transactions contemplated hereby or thereby.
21. No Implied Waiver. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
22. Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably waives any and all right to trial by jury in any legal proceeding
arising out of or related to this Agreement, the Ancillary Agreements or the
transactions contemplated hereby or thereby.
23. Expenses. Each of the Company and the Purchaser shall pay and be
responsible for all of its respective fees and expenses, including legal fees
and expenses, incurred in connection with the preparation and negotiation of
this Agreement and the Ancillary Agreements.
[Remainder of page intentionally left blank.]
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
XXXXXXX INTERNATIONAL LIMITED
By /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chairman
ISTITHMAR PJSC
By /s/ Xxxxxx Xxxxx Bin Sulayem
------------------------------------
Name: Xxxxxx Xxxxx Bin Sulayem
Title: Executive Chairman
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT, dated as of [ ], 2004 (this
"Agreement"), by and between Xxxxxxx International Limited, a company
incorporated under the laws of The Bahamas (the "Company"), and Istithmar
PJSC, a company organized under the laws of Dubai ("Istithmar").
R E C I T A L S
A. On the date hereof, Istithmar has purchased ordinary shares (the
"Company Shares") of the Company, par value $0.001 per share, pursuant to the
Stock Purchase Agreement dated as of July 15, 2004 between the Company and
Istithmar (the "Company Purchase Agreement").
B. On the date hereof, Istithmar has purchased ordinary shares (the
"Other Shares") of the Company, par value $0.001 per share, pursuant to stock
purchase agreements dated as of July 15, 2004 among Istithmar and certain
shareholders (the "Other Purchase Agreements" and, together with the Company
Purchase Agreement, the "Purchase Agreements").
C. In connection with the purchase and sales of the Company Shares
and the Other Shares, the Company and Istithmar entered into a Corporate
Governance Agreement dated as of the date of this Agreement (the "Governance
Agreement"), and the Company, Istithmar and certain shareholders of the
Company entered into a letter agreement dated as of the date of this Agreement
(the "Letter Agreement") regarding voting for directors, certain matters
relating to registration rights and other matters.
D. The parties have agreed to enter into this Agreement in order to
provide Istithmar with certain registration rights.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1 Certain Definitions. For the purposes of this Agreement,
the following terms shall have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under direct or indirect common control with
such Person. For the purposes of this Agreement, "control," when used with
respect to any specified Person, shall mean, (a) as determined with respect to
each Person pursuant to the laws of the jurisdiction where such Person is
organized, the actual or deemed direction of the management and policies of
such Person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise, or (b) the power to direct the
management and policies of such Person whether through ownership of voting
securities,
1
by contract or otherwise if there exists any agreement, arrangement or
understanding, whether oral or written, between such specified Person and the
Person who has such power (together with any Affiliates thereof, the "Power
Person") with regard to the Power Person taking an action that the specified
Person is prohibited from taking under this Agreement or the specified Person
not taking an action it is required to take under this Agreement, or matters
related to either of the foregoing; and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing. For the
avoidance of doubt, for purposes of this Agreement the Company shall be deemed
not to be an Affiliate of Istithmar.
"Authorized Representative" shall have the meaning ascribed thereto
in Section 2.1(d).
"Beneficial Ownership" shall have the meaning set forth in Rule
13d-3 under the Securities Exchange Act as of the date of this Agreement; and
the terms "Beneficially Owned" and "Beneficially Owns" shall have meanings
correlative to the foregoing.
"Business Combination" means any one of the following transactions:
(i) any merger or consolidation of the Company or any of its
Subsidiaries with any Person, or any tender or exchange offer by any such
Person for any Equity Securities of the Company or any of its Subsidiaries; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition by the Company (in one transaction or a series of transactions) to
any Person of assets constituting a Substantial Part of the Company; or
(iii) the issuance, exchange or transfer by the Company or any of
its Subsidiaries (in one transaction or series of transactions) of any
securities of the Company or any of its Subsidiaries to any member of the WLG
Group, the Kersaf Group, the Caledonia Group, the CMS Group or the Istithmar
Group that increases such member's Voting Interest, or to any other Person in
excess of ten percent (10%) of the Shares issued and outstanding as of the
date of such issuance; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Company; or
(v) any transaction having, with respect to the Company, the effect
of a "Rule 13e-3 transaction" (as defined in Rule 13e-3(a)(3) of the
Securities Exchange Act); or
(vi) any agreement, contract or other arrangement with any Person
providing for any one or more of the actions specified in clauses (i) to (v)
above.
"Caledonia" means Caledonia Investments PLC, a company incorporated
under the laws of England.
2
"Caledonia Group" means, as of any date, Caledonia and all of its
Affiliates as of such time.
"CMS" means Cement Merchants SA, a company incorporated under the
laws of Panama.
"CMS Group" means, as of any date, CMS and all of its Affiliates as
of such time.
"Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or the
Securities Exchange Act.
"Company Event" shall have the meaning ascribed thereto in Section
2.2.1(b).
"Convertible Securities" means securities of the Company convertible
into or exchangeable for Shares.
"Demand Piggyback Shares" shall have the meaning ascribed thereto in
Section 2.3.1(a)(i).
"Demand Registration" shall have the meaning ascribed thereto in
Section 2.2.1(a).
"Election Period" shall have the meaning ascribed thereto in Section
2.3.1(a)(i).
"Equity Security" means (i) Shares, (ii) Convertible Securities and
(iii) any options, warrants or other rights issued by the Company to acquire
Shares or Convertible Securities.
"Holder" shall have the meaning ascribed thereto in Section 2.1(c).
"Incidental Registration" shall have the meaning ascribed thereto in
Section 2.3.1(b).
"Incidental Registration Piggyback Shares" shall have the meaning
ascribed thereto in Section 2.3.1(b).
"Indemnified Party" shall have the meaning ascribed thereto in
Section 2.7.1.
"Initiating Holder" shall have the meaning ascribed thereto in
Section 2.2.1(a).
"Independent Director" means a director of the Company who (a) is
not (apart from such directorship) (i) an officer, Affiliate, employee,
principal stockholder,
3
consultant or partner of any member of the WLG Group, the Caledonia Group or
the Istithmar Group or of any entity that was dependent upon any member of the
WLG Group, the Caledonia Group or the Istithmar Group for more than five
percent (5%) of its revenues or earnings in its most recent fiscal year or
(ii) an officer, employee, consultant or partner of the Company or any
Affiliate of the Company or an officer, employee, principal stockholder,
consultant or partner of an entity that was dependent upon the Company or any
Affiliate of the Company for more than five percent (5%) of its revenues or
earnings in its most recent fiscal year or (b) is designated by any of WLG,
Caledonia, CMS or Istithmar (whether or not such director is independent in
accordance with clause (a) above) but with respect to the matter under
consideration by the Board, the Group appointing such director does not have
an interest (financial or otherwise) that is different than the interest of
the Company.
"Istithmar Group" means Istithmar, Nakheel Co. LLC, Nakheel Holdings
1 LLC, Nakheel Holdings 2 LLC, Nakheel Holdings 3 LLC and, as of any date, any
of their respective Subsidiaries and any Person engaged in investment or
commercial activities which is under the authority and control of the current
Executive Chairman of Istithmar comparable to the authority and control he
exercises over Istithmar as of the date hereof.
"Kersaf" means Kersaf Investments Limited, a company incorporated
under the laws of the Republic of South Africa.
"Kersaf Group" means, as of any date, Kersaf and all of its
Affiliates as of such time.
"Letter Agreement" shall have the meaning ascribed thereto in the
Recitals.
"Notice" shall have the meaning ascribed thereto in Section
2.3.1(a)(i).
"Permitted Transferee" shall have the meaning ascribed thereto in
Section 2.1(c).
"Person" means any individual, firm, partnership, company, joint
stock company, corporation, partnership, trust, estate, incorporated or
unincorporated association, syndicate, joint venture or organization, or any
government or any department, agency or other political subdivision thereof,
or any other entity, and shall include any successor of any such entity.
"Prior Registration Delay" shall have the meaning ascribed thereto
in Section 2.2.1(b).
"Registrable Securities" shall have the meaning ascribed thereto in
Section 2.1(b).
"Registration Expenses" shall have the meaning ascribed thereto in
Section 2.6.
4
"Securities Act" means the United States Securities Act of 1933 or
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Securities Exchange Act" means the United States Securities
Exchange Act of 1934 or any successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
"Shares" means (a) the ordinary shares, par value $0.001 per share,
of the Company (including any dividends in kind thereon), or (b) any other
class of stock resulting from any reclassification, exchange, substitution,
combination, stock split or reverse stock split, including in connection with
any merger or otherwise, of such ordinary shares.
"Standstill Expiration Date" means [FIFTH ANNIVERSARY OF THE
CLOSING], 2009.
"Subsidiary" of any Person means another Person, an amount of the
voting securities, other voting ownership or voting partnership interests of
which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, fifty percent
(50%) or more of the equity interests of which) is owned directly or
indirectly by such first Person or by another subsidiary of such first Person.
"Substantial Part of the Company" means, as of any date, twenty
percent (20%) or more of the book value of the consolidated tangible assets of
the Company and its Subsidiaries, taken as a whole (without regard to any
liabilities of the Company or any of its Subsidiaries), as of the end of its
most recent fiscal quarter ending prior to the time the determination is made.
"2001 Agreement" means the Registration Rights and Governance
Agreement, dated as of July 3, 2001, among the Company, Sun International
Investments Limited, WLG, Kersaf Investments Limited, Caledonia, Mangalitsa
Limited, CMS, Rosegrove Limited, Royale Resorts Holdings Limited and Sun
International Inc, as in effect on the date of this Agreement.
"2001 Agreement Holder" shall have the meaning ascribed to the term
"Holder" in Section 5.1(c) of the 2001 Agreement.
"2001 Agreement Registrable Securities" shall have the meaning
ascribed to the term "Registrable Securities" in Section 5.1(b) of the 2001
Agreement.
"Underwriter" shall have the meaning ascribed thereto in Section
2.2.3.
"Underwriter Out" means the occurrence of any of the following: (1)
trading in securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any securities
of the Company on any exchange or in the over-the-counter market, shall have
been suspended
5
or minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (2) a banking moratorium shall
have been declared by federal or state authorities, (3) there shall have been
a declaration of a national emergency or war by the United States or (4) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions
on the financial markets in the United States shall be such) as to make it
impracticable or inadvisable to proceed with a public offering.
"Underwritten Public Offering" shall mean a sale of securities of
the Company to an underwriter or underwriters for re-offering to the public,
which shall include customary selling efforts.
"WLG" means World Leisure Group Limited, a company incorporated
under the laws of the British Virgin Islands.
"WLG Group" means, as of any date, WLG and all of its Affiliates as
of such time, including Xxxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxx.
SECTION 1.2 Other Definitions. Capitalized terms used but not
otherwise defined herein shall have the meaning ascribed to such terms in the
2001 Agreement.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 General; Securities Subject to this Agreement. (a) Grant
of Rights. The Company hereby grants registration rights to each Holder (as
defined below) upon the terms and subject to the conditions set forth in this
Agreement.
(b) Registrable Securities. For the purposes of this Agreement,
"Registrable Securities" means the Company Shares, the Other Shares and any
Shares acquired prior to the Standstill Expiration Date by the Istithmar Group
in accordance with the Governance Agreement; provided, however, that Shares
shall cease to be Registrable Securities for purposes of this Agreement when a
registration statement covering such Registrable Securities has been declared
effective under the Securities Act by the Commission and all such Registrable
Securities have been disposed of pursuant to such effective registration
statement.
(c) Holders of Registrable Securities. A Person shall be a holder of
Registrable Securities (each, a "Holder") whenever such Person is a member of
the Istithmar Group (or a Person that has acquired Registrable Securities,
directly or indirectly, from a member of the Istithmar Group in accordance
with the Governance Agreement (such Person, a "Permitted Transferee")), that
(i) owns of record Registrable Securities and (ii) agrees in writing to be
bound by the terms of this Article II applicable to the Istithmar Group. For
purposes of this Agreement, a Holder shall be entitled to assign its rights
hereunder to a Permitted Transferee and such Permitted Transferee shall
6
acquire such rights only if such Permitted Transferee shall have acquired one
million (1,000,000) or more Registrable Securities pursuant to one (1) or more
transfers made in accordance with the Governance Agreement, and, for the
avoidance of doubt, shall include any Person who shall have acquired one
million (1,000,000) or more Registrable Securities from a member of the
Istithmar Group following the Standstill Expiration Date pursuant to any
privately negotiated purchase.
(d) If the Company receives conflicting instructions, notices or
elections from two (2) or more Persons with respect to the same Registrable
Securities, the Company may act upon the basis of the instructions, notice or
election received from the registered owner of such Registrable Securities.
The Company shall be entitled to rely upon any instruction received from the
authorized representative (the "Authorized Representative") of the Istithmar
Group appointed pursuant to Section 3.3. In furtherance of the foregoing
Istithmar hereby represents and warrants to the Company that the Authorized
Representative, as appointed from time to time, has and shall have the power
and authority to make, execute, acknowledge and deliver such notices,
requests, instructions, certificates, stock powers and other writing, and in
general, to do any and all things and to take any and all actions that such
Authorized Representative, in its sole and absolute discretion, may consider
necessary, proper or convenient in connection with or to carry out the
activities described in this Article II as the agent and attorney-in-fact of
any Holder.
SECTION 2.2 Demand Registration Rights.
SECTION 2.2.1 Demand Registrations. (a) Each Holder shall have the
following rights to make written requests (specifying the intended method of
disposition) (such Holder, the "Initiating Holder") for registration under the
Securities Act (each, a "Demand Registration") of all or part of the Shares
which constitute such Initiating Holder's Registrable Securities:
(i) with respect to the Company Shares, the Other Shares or any
Shares acquired prior to the Standstill Expiration Date by the Istithmar Group
in accordance with the Governance Agreement, one (1) or more Demand
Registrations, each covering no less than one million (1,000,000) Shares; and
(ii) with respect to any Incidental Registration Piggyback Shares
requested by a Holder pursuant to Section 2.3.1 to be included in a registered
offering but excluded from such registration pursuant to Section 2.3.2(b)
solely as a result of the inclusion in such registration of Shares to be sold
by any 2001 Agreement Holder, each Holder of such excluded Shares shall have
the right to make one (1) Demand Registration in respect of the aggregate
number of Incidental Registration Piggyback Shares so excluded from such
registration; provided that the request for such Demand Registration must be
made no later than the three (3) month anniversary of the first date on which
the Company is permitted in accordance with this Agreement, the 2001 Agreement
and otherwise to file such registration statement.
7
(b) If at the time of any request to register Registrable Securities
pursuant to this Section 2.2.1, the Company is engaged in a registered public
offering, intends to file a registration statement solely with respect to the
sale of Shares by the Company within forty five (45) days of such time or is
engaged in any activity other than the filing of a registration statement
which, in the reasonable good faith determination of the Board of Directors,
after consultation with outside counsel, would be required to be disclosed
under applicable law as a result of such request and would be materially and
adversely affected by the requested registration (each, a "Company Event"),
then the Company may at its option, within five (5) business days of such
request, direct that such request be delayed, (A) in the case the Company is
engaged in a registered offering or intends to file such a registration
statement, for a reasonable period of time not in excess of the lesser of (x)
three (3) months from the date of such request or (y) forty five (45) days
from the effective date of such offering (provided, however, that where such
delay is requested by the Company as a result of its intention to file a
registration statement within forty five (45) days of such time, the Company
may exercise its rights hereunder only to the extent that such registration
statement is actually filed by the Company within such forty five (45) day
period) and (B) in the case of any other activity, for a reasonable period of
time not in excess of forty five (45) days from the date of such direction by
the Company, provided, however, that notwithstanding the foregoing such forty
five (45) day period may be extended to the extent that the failure to file
such registration statement is the result of the Company not having available
financial statements or other information required to be included in such
registration statement and the Company has used commercially reasonable
efforts to obtain such financial statements or other information as soon as
practicable. In the event any Initiating Holder(s) have made a written request
to the Company for a Demand Registration and the conditions described in the
immediately preceding sentence shall not exist as of the time of such request,
such Demand Registration may not be delayed except as a result of the Company
becoming involved in any activity other than the filing of a registration
statement which, in the reasonable good faith determination of the Board of
Directors, after consultation with outside counsel, would be required to be
disclosed under applicable law as a result of such Demand Registration and
would be materially and adversely affected by the requested registration (and
such circumstances shall be deemed to constitute a Company Event for all
purposes of this Agreement); provided, however, that such delay shall be made
for a reasonable period of time not in excess of forty five (45) days from the
date of such direction by the Company, provided, however, that notwithstanding
the foregoing such forty five (45) day period may be extended to the extent
that the failure to file such registration statement is the result of the
Company not having available the financial statements or other information
required to be included in such registration statement and the Company has
used commercially reasonable efforts to obtain such financial statements or
other information as soon as practicable. In addition, the Company shall not
be required to file any registration within six (6) months after the effective
date of any other registration statement of the Company (the "Prior
Registration Delay"). Notwithstanding the foregoing, the Company shall, upon
reasonable prior written notice by any Holder, use its commercially reasonable
efforts to be prepared to file a registration upon the expiration of such six
(6) months.
8
(c) The obligations of the Company to take the actions contemplated
by this Section 2.2.1 hereof with respect to an offering of Shares shall be
subject to the following conditions and limitations:
(i) Each participating Holder shall conform to all applicable
requirements of the Securities Act and the Securities Exchange Act
with respect to the offering and sale of securities and advise each
Underwriter, broker or dealer through which any of the Registrable
Securities are offered that the Registrable Securities are part of a
distribution that is subject to the prospectus delivery requirements
of the Securities Act.
(ii) Except if the Initiating Holder(s) pay any incremental
costs incurred by the Company, the fulfillment of the Company's
obligations in connection with such registration shall not require
the Company to prepare audited financial statements not required to
be prepared for the Company to comply with its obligations under the
Securities Exchange Act as of any date not coincident with the last
day of any fiscal year of the Company.
SECTION 2.2.2 Effective Demand Registration. Subject to Section
2.2.1(b) of this Agreement and the Company's obligations under Section 5.4(b)
of the 2001 Agreement, the Company shall use reasonable commercial efforts to
cause any Demand Registration to become effective not later than ninety (90)
days after it receives a request under Section 2.2.1 hereof and to remain
effective for the lesser of (i) the period during which all Registrable
Securities registered in the Demand Registration are sold and (ii) one hundred
and twenty (120) days; provided, however, that if the Initiating Holder(s)
requests the Company to withdraw such registration, other than as the result
of a breach by the Company, the Initiating Holder(s) shall promptly pay all of
the costs and expenses incurred by the Company in connection with such
registration.
SECTION 2.2.3 Underwriting Procedures. (a) Selection of
Underwriters. The offering of Registrable Securities pursuant to a Demand
Registration may be in the form of a firm commitment underwritten offering and
the managing underwriter selected for such offering shall be an
internationally recognized underwriter jointly selected by, and engaged on
terms and conditions mutually satisfactory to, the Company and the Initiating
Holder, each acting in good faith (having due regard to the experience and
relationship with the Company and the Initiating Holder(s) of the managing
underwriter) (the "Underwriter"). Each of the parties agrees and acknowledges
that any of Bear Xxxxxxx, Citigroup Global Markets, Deutsche Bank, JPMorgan,
Xxxxxx Brothers and Xxxxxxx Xxxxx shall, subject to the execution of customary
underwriting agreements on commercially reasonable terms therewith, be deemed
to satisfy the requirements of the immediately preceding sentence to serve as
a managing Underwriter or a member of an underwriting syndicate.
(b) Distribution by Underwriters. The managing Underwriter selected
for any offering shall enter into an agreement (containing customary
indemnification provisions and representations and warranties) with the
Company and the Holders whereby the Holders shall direct the underwriters to
take reasonable steps to ensure a
9
wide distribution of the underwritten shares in accordance with customary
practices and that after giving effect to any such sale, no purchaser
(together with its Affiliates) would Beneficially Own four and nine-tenths
percent (4.9%) or more of the outstanding Shares of the Company as of such
time.
SECTION 2.3 Incidental or "Piggy-Back" Registration Rights.
SECTION 2.3.1 Demand and Company Registrations.
(a) Demand Registrations.
(i) Within ten (10) days after receipt of a request for a
Demand Registration, the Company shall give written notice (the
"Notice") of such request to all the Holders (other than the
Initiating Holder(s)). Each of the Holders other than the Initiating
Holder(s) shall, subject to the other provisions of this Section
2.3, upon receipt of written request therefor within ten (10) days
after the Notice is given (the "Election Period"), have the right to
include in such Demand Registration the number of Registrable
Securities registrable by such Holder pursuant to Section 2.2.1 of
this Agreement as of the time such Notice is made (the "Demand
Piggyback Shares").
(ii) Registration of the Demand Piggyback Shares requested to
be registered by any Holder shall be subject to the following
conditions: (A) in respect of a registration relating to any
Underwritten Public Offering, (x) compliance with the "cutback"
provisions contained in Section 2.3.2, (y) acceptance by such Holder
of the timing and terms and conditions of the subject Underwritten
Public Offering (as evidenced by each such Holder and, if
applicable, any other participating member of the Istithmar Group,
becoming a party to the applicable underwriting agreement) and (z)
the Underwriter being of the opinion that the sale of Shares by such
Holder and, if applicable, any other participating member of the
Istithmar Group, would not have a material and adverse effect on the
market for the Shares and, if applicable, any other securities
issued by the Company.
(iii) In the event that the Initiating Holder(s) requests the
Company to withdraw a Demand Registration, Holders who shall have
elected to register Demand Piggyback Shares as of the date of such
withdrawal shall have the right, upon one (1) business day's prior
written notice to the Company, to pursue such registration;
provided, however, that the requirements of Section 2.2.1 shall
otherwise be satisfied.
(iv) Subject to the foregoing and Section 2.3.2, (A) the
Company shall include in such registration all Registrable
Securities that the Company has received written requests for
inclusion therein within the Election Period and (B) thereafter, in
the case of a Demand Registration, the Company may elect to include
in such registration additional Shares issued by the Company. All
requests made pursuant to this Section 2.3.1 shall specify the
aggregate number of
10
Registrable Securities to be registered. For the avoidance of doubt,
no Person other than a Holder or the Company shall have the right to
include Shares in any Demand Registration pursuant to Section 2.2.1
of this Agreement, and the Company shall not include Shares of any
Person other than a Holder or the Company in any such Demand
Registration.
(b) Company Registrations. If, at any time from time to time, the
Company shall determine to register any of its Shares for sale in an
Underwritten Public Offering for its own account (other than a registration
relating to (i) a registration of an employee compensation plan or arrangement
adopted in the ordinary course of business on Form S-8 (or any successor form)
or any dividend reinvestment plan or (ii) a registration of securities on Form
F-4 (or any successor form) including, without limitation, in connection with
a proposed issuance in exchange for securities or assets of, or in connection
with a merger or consolidation with another Person), the Company will promptly
give to the Holders written notice thereof, and include in such registration
(subject to Section 2.3.2) all the Registrable Securities specified in a
written request made by any one or more of the Holders (the "Incidental
Registration Piggyback Shares") within ten (10) days after such Holder's
receipt of such written notice from the Company ("Incidental Registration").
The right of such Holder to have Registrable Securities included in a
registration pursuant to this Section 2.3.1 shall be conditioned upon such
Holder accepting the timing and terms and conditions of the subject
Underwritten Public Offering (as evidenced by each such Holder and, if
applicable, any participating member of the Istithmar Group, becoming a party
to the applicable underwriting agreement).
SECTION 2.3.2 Cutback. (a) If the lead managing Underwriter of an
offering covered by Section 2.3.1(a) of this Agreement shall advise the
Company on or before the date five (5) days prior to the date then scheduled
for such offering that, in its view, the amount of Shares requested to be
included in such registration exceeds the amount which can be sold in such
offering without having a material and adverse effect on the market for the
Shares and, if applicable, any other securities issued by the Company, then
the Company will include in such registration:
first, any Registrable Securities requested to be registered by any
Holders, allocated, if necessary, pro rata among such Holders on the basis of
the number of the Shares proposed to be registered at the time; and
second, any Shares proposed to be registered by the Company.
(b) If the lead managing Underwriter of an offering covered by
Section 2.3.1(b) of this Agreement shall advise the Company on or before the
date five (5) days prior to the date then scheduled for such offering that, in
its view, the amount of Shares requested to be included in such registration
exceeds the amount which can be sold in such offering without having a
material and adverse effect on the market for the Shares and, if applicable,
any other securities issued by the Company, then the Company will include in
such registration:
first, any Shares proposed to be registered by the Company;
11
second, any 2001 Agreement Registrable Securities requested to be
registered by any 2001 Agreement Holder; and
third, any Registrable Securities requested to be registered by any
Holders, allocated, if necessary, pro rata among such Holders on the basis of
the number of the Shares proposed to be registered at the time.
SECTION 2.3.3 Right of Termination. The Company shall have the right
to terminate or withdraw any registration initiated by it under Section
2.3.1(b) prior to the effectiveness of such registration whether or not the
Holders have elected to include Registrable Securities in such registration.
In the event that the Company provides the Holders who shall have elected to
participate in such Company registration, notice of its intention to withdraw
or terminate such registration, the Holders who shall have elected to register
Shares pursuant to the Incidental Registration, shall have the right, upon one
(1) business day's prior written notice to the Company, to pursue such
registration as a Demand Registration; provided, however, that (a) the
requirements of Section 2.2.1 shall otherwise be satisfied and (b) this right
shall be subject to the rights of the 2001 Agreement Holders under Section
5.3.3 of the 2001 Agreement.
SECTION 2.4 Provisions Applicable to Demand and Piggy-Back
Registrations.
SECTION 2.4.1 Expenses. The Company shall pay all Registration
Expenses (as defined in Section 2.6 hereof) incurred in connection with any
registration pursuant to Section 2.2 or 2.3, unless such registration fails to
become effective as a result of the fault of one or more Holders or any member
of the Istithmar Group, in which case the Company will not be required to pay
the Registration Expenses incurred with respect to the offering of such
Holder's or Holders' Registrable Securities, in which case such Registration
Expenses shall be paid by the Holder or the member of the Istithmar Group at
fault.
SECTION 2.4.2 Holdback Agreements. (a) Each Holder agrees not to
effect any sale or distribution of any Registrable Securities, including a
sale pursuant to Rule 144 under the Securities Act, during the twenty (20)
days prior to and ninety (90) day period beginning on the effective date of
any Demand Registration or Incidental Registration (except as part of such
registration), if and to the extent requested by the Company or any Holder
participating in the offering, in the case of a non-Underwritten Public
Offering, or if and to the extent requested by the Underwriter, in the case of
an Underwritten Public Offering.
(b) Restrictions on Public Sale by the Company. The Company agrees
not to file any registration statement with respect to any of its Equity
Securities (except pursuant to registrations on Form F-4 or S-8 or any
successor thereto or registrations of the sale of debt securities that are
Convertible Securities), during the period beginning on the effective date of
any registration statement in which the Holders of Registrable Securities are
participating and ending on the earlier of (i) ninety (90) days after the
effective date of such registration statement and (ii) the number of days
agreed upon by
12
the managing Underwriter of such registered offering which included such
Registrable Securities and the Company.
SECTION 2.5 Registration Procedures.
In connection with any registration statement filed pursuant to this
Agreement, the Company will, as expeditiously as possible:
(a) in connection with a request pursuant to this Agreement, prepare
and file with the Commission, after receipt of a request to file a
registration statement with respect to Registrable Securities, a registration
statement on any form for which the Company then qualifies (or which counsel
for the Company shall deem appropriate) and which form shall be available for
the sale of such Registrable Securities in accordance with the intended method
of distribution thereof, shall comply in all material respects with the
Securities Act and/or the Securities Exchange Act, as the case may be and, if
the offering is an Underwritten Public Offering, shall be reasonably
satisfactory to the managing Underwriter or Underwriters, and use its
commercially reasonable efforts to cause such registration statement to become
effective; provided, however, that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company shall (i)
furnish to the counsel selected by the Initiating Holder(s), if any, copies of
all such documents proposed to be filed, and (ii) notify such counsel and each
participating Holder of any stop order issued or threatened by the Commission
and take all reasonable actions required to prevent the entry of such stop
order or to remove it if entered;
(b) in connection with a registration pursuant to this Agreement,
(i) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period of
not more than one hundred twenty (120) days (or such shorter period that will
terminate when all Registrable Securities covered by such registration
statement have been disposed of) and (ii) cause each registration filed with
the Commission, as amended or supplemented, to comply with the provisions of
the Securities Act, the Securities Exchange Act and the rules and regulations
thereunder applicable to it with respect to the disposition of all Shares
covered by each registration statement during the applicable period specified
herein in accordance with the intended method or methods of distribution;
(c) furnish to each participating Holder, without charge, such
number of copies of the registration statement, each amendment and supplement
thereto (in each case including all exhibits thereto), the prospectus included
in such registration statement (including each preliminary prospectus) and
such other documents as each seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such Holder;
(d) use commercially reasonable efforts to register or qualify such
Registrable Securities under such other securities or "blue sky" laws of such
jurisdictions as any participating Holder or Underwriter reasonably requests
in writing and do any and
13
all other acts and things that may be reasonably necessary or advisable to
register or qualify for sale in such jurisdictions the Registrable Securities
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it
is not then so qualified, (ii) subject itself to taxation in any such
jurisdiction, (iii) consent to general service of process in any such
jurisdiction or (iv) provide any undertaking required by such other securities
or "blue sky" laws or make any change in its charter documents that the Board
of Directors of the Company (including a majority of the Company's Independent
Directors) determines in good faith to be contrary to the best interest of the
Company and its shareholders;
(e) use commercially reasonable efforts to cause the Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable
the participating Holder(s) or the Underwriters, if any, to consummate the
disposition of such Registrable Securities;
(f) notify each participating Holder at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, and prepare and file with the Commission as soon
thereafter as practicable, after consultation with the Initiating Holder(s), a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(g) enter into customary agreements (including an underwriting
agreement in customary form, if the offering is an Underwritten Public
Offering) (which shall include customary (i) indemnification and contribution
provisions and representations and warranties and (ii) conditions precedent
including the provision of comfort letters and legal opinion to the
underwriters) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of such Registrable Securities;
(h) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission;
(i) use commercially reasonable efforts to cause all Registrable
Securities covered by the registration statement to be listed on each
securities exchange or market, if any, on which similar securities issued by
the Company are then listed, provided that the applicable listing requirements
are satisfied;
(j) subject to the payment of the incremental costs by the
Initiating Holder(s) in accordance with Section 2.2.1(c), make available to
its security holders an
14
earnings statement covering at least 12 months which shall satisfy the
provisions of Sections 11(a) of the Securities Act and Rule 158 thereunder;
(k) cooperate and assist in any filings required to be made with the
New York Stock Exchange, including in order for the Registrable Securities to
be admitted to listing on the New York Stock Exchange;
(l) subject to the delivery of confidentiality agreements
satisfactory to the Company, make available for inspection by representatives
of any Underwriters participating in any disposition pursuant to a
registration statement (including any "qualified independent underwriter" that
is required to be retained in accordance with the rules and regulations of the
New York Stock Exchange) and any counsel or accountant retained thereby, all
financial and other records, pertinent corporate documents and properties of
the Company reasonably requested by any such Persons, and cause the respective
officers, directors, employees, and any other agents of the Company to supply
all information reasonably requested by any such Underwriter or counsel or
accountant in connection with a registration statement, and make such
representatives of the Company available for discussion of such documents as
shall be reasonably requested by the Underwriters or their counsel or
accountant upon prior reasonable prior written notice to the Company;
(m) use commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a registration statement;
(n) notify each participating Holder (i) when a registration
statement has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the Commission or
any state securities authority for post-effective amendments and supplements
to a registration statement and prospectus or for additional information after
the registration statement has become effective, (iii) of the issuance by the
Commission or any state securities authority of any stop order suspending the
effectiveness of a registration statement or the initiation of any proceedings
for that purpose, (iv) in the case of a registration, if, between the
effective date of a registration statement and the closing of any sale of
Registrable Securities, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to be true and
correct in all material respects; and
(o) in connection with an Underwritten Public Offering in excess of
two million (2,000,000) Shares, use commercially reasonable efforts to
commence a road show (and make commercially reasonable efforts to make Xxxxxx
X. Xxxxxxx or his successor available to participate in such road show) upon
notice from the managing Underwriter that, in the opinion of such Underwriter,
such selling efforts are advisable.
The Company may require each participating Holder and each
participating member of the Istithmar Group as to which any registration is
being effected to furnish to the Company such information regarding the
distribution of such securities and other matters as may be required to be
included in the registration statement.
15
Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in paragraph (f) of this
Section 2.5, such Holder shall forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by paragraph (f) of this
Section 2.5 and, if so directed by the Company, such Holder shall deliver to
the Company all copies, other than permanent file copies then in such Holder's
possession or copies delivered to prospective purchasers, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. If the Company shall give any such notice, notwithstanding anything to
the contrary contained herein, the Company shall extend the period during
which such registration statement shall be maintained effective pursuant to
this Agreement (including the period referred to in paragraph (b) of this
Section 2.5) by the number of days during the period from and including the
date of the giving of such notice pursuant to paragraph (f) of this Section
2.5 to and including the date when each participating Holder covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by paragraph (f) of this Section 2.5.
SECTION 2.6 Registration Expenses. The Company shall pay all
expenses incident to its performance of or compliance with the registration of
Registrable Securities to be sold in accordance with this Agreement; provided,
however, that the Company shall not pay the costs and expenses of any Holder
and each participating member of the Istithmar Group relating to underwriters'
commissions and discounts and fees payable to the Commission relating to
Registrable Securities to be sold by such Holder and each participating member
of the Istithmar Group, brokerage fees, transfer taxes or the fees or expenses
of any counsel, accountants or other representatives retained by such Holders
and each participating member of the Istithmar Group, individually or in the
aggregate. All of the expenses described in this Section 2.6 that are to be
paid by the Company are herein called the "Registration Expenses".
SECTION 2.7 Indemnification; Contribution.
SECTION 2.7.1 Indemnification by the Company. The Company agrees to
indemnify to the fullest extent permitted by law, in the case of any
registration statement filed pursuant to this Agreement, each participating
Holder and each participating member of the Istithmar Group covered by such
registration statement, each other Person who participates as an underwriter
in the offering or sale of such securities, and each Person, if any, who
controls such participating Holder or any such underwriter within the meaning
of the Securities Act (each an "Indemnified Party" and collectively, the
"Indemnified Parties") against any and all losses, claims, damages or
liabilities to which such Indemnified Party may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact or any omission or alleged omission of a
material fact to be stated in any registration statement under which such
securities were registered under the Securities Act, prospectus or preliminary
prospectus filed by the Company or any amendment thereof or supplement thereto
or necessary to make the statements therein (in the case of a prospectus in
light of the
16
circumstances under which they were made) not misleading, or any violation by
the Company of the Securities Act or any rule or regulation thereunder
applicable to the Company; provided, however, that the Company shall not be
liable to the extent that any loss, claim, or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Indemnified Party expressly for use in the
Registration Statement; provided, further, that the Company shall not be
liable to any participating Holder or to any participating member of the
Istithmar Group (or to any Person who acts as an underwriter in such sale or
who controls such seller) to the extent that any loss, claim, or liability
arises out of an untrue statement, alleged untrue statement, omission, or
alleged omission made in any preliminary prospectus if either (a)(i) such
participating Holder failed to send or deliver a copy of the prospectus with
or prior to written confirmation of the sale by such participating Holder to
the Person asserting the claim, (ii) the prospectus would have corrected such
untrue statement, alleged untrue statement, omission or alleged omission and
(iii) the Company has furnished such Holder a sufficient number of copies of
same in accordance with Section 2.5(c); or (b)(x) such untrue statement,
alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the prospectus and (y) having been furnished by or
on behalf of the Company with copies of the prospectus as so amended or
supplemented, such participating Holder fails to deliver such prospectus as so
amended or supplemented, with or prior to the written confirmation of the sale
by such participating Holder to the Person asserting the claim.
SECTION 2.7.2 Indemnification by Holders. In connection with any
registration statement in which a Holder or any member of the Istithmar Group
is participating, each such Holder shall furnish to the Company in writing
such information with respect to such Holder and any member of the Istithmar
Group as is required to be included in such registration statement pursuant to
the rules and regulations under the Securities Act and each such Holder agrees
to indemnify, to the fullest extent permitted by law, the Company, its
officers, directors and agents and each Person, if any, who controls the
Company (within the meaning of the Securities Act) against any and all losses,
claims, damages, and liabilities resulting from any untrue or alleged untrue
statement of a material fact or any omission or alleged omission of a material
fact required to be stated in any registration statement, prospectus or
preliminary prospectus filed by the Company or any amendment thereof or
supplement thereto or necessary to make the statements therein (in the case of
a prospectus, in light of the circumstances under which they were made) not
misleading, but only to the extent that such untrue or alleged untrue
statement or omission or alleged omission was made in reliance upon and
conforms with written information concerning such Holder furnished by such
Holder to the Company expressly for use in any such prospectus or preliminary
prospectus; provided, however, that the liability of such Holder shall not
exceed the net proceeds received by such Holder and the participating member
of the Istithmar Group from the sale of its Registrable Securities. Each
Holder also shall indemnify any underwriters of the Registrable Securities,
their officers and directors and each Person who controls such underwriters
(within the
17
meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Company (but only to the extent that any
untrue statement or omission or alleged omission was made in reliance upon and
conforms with written information concerning such Holder furnished by such
Holder to such underwriter expressly for use in such prospectus or preliminary
prospectus); provided, however, that the indemnification of such Holder shall
be limited to the net proceeds received by such Holder and the participating
members of the Istithmar Group from the sale of its Registrable Securities.
SECTION 2.7.3 Contribution. If the indemnification provided for in
this Section 2.7 is unavailable to any Indemnified Party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to herein,
then the indemnifying party, to the extent such indemnification is
unavailable, in lieu of indemnifying such Indemnified Party, shall contribute
to the amount paid or payable by such Indemnified Party as a result of such
losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the indemnifying party (and, if
the indemnifying party is a Holder, aggregated with the relative fault of the
participating members of the Istithmar Group) and Indemnified Parties in
connection with the actions that resulted in such losses, claims, damages,
liabilities or expenses. The relative fault of such indemnifying party or, if
applicable, any participating members of the Istithmar Group and Indemnified
Parties shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party
or, if applicable, any participating member of the Istithmar Group or
Indemnified Parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.7.3 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person.
SECTION 2.8 Reporting Company Covenant. The Company covenants and
agrees that it shall use commercially reasonable efforts to satisfy the
listing requirements of the New York Stock Exchange; provided, however, that
the foregoing covenant shall terminate upon the consummation of any Business
Combination.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Interpretation; Certain Definitions. When a reference is
made in this Agreement to a Section or Subsection, such reference shall be to
a Section or Subsection of, this Agreement unless otherwise indicated. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or
18
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". The words "hereof", "herein", "hereto",
"hereby" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The term "or" is not exclusive. The word "extent"
in the phrase "to the extent" shall mean the degree to which a subject or
other thing extends, and such phrase shall not mean simply "if". The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms. Any agreement or instrument defined or
referred to herein or in any agreement or instrument that is referred to
herein means such agreement or instrument as from time to time amended,
modified or supplemented. References to a Person are also to its permitted
successors and assigns.
SECTION 3.2 Adjustments. References to numbers of Shares and to sums
of money contained herein shall be adjusted to account for any
reclassification, exchange, combination, substitution, combination, stock
split or reverse stock split of the Shares, including in connection with any
merger or otherwise.
SECTION 3.3 Notices. All notices, requests and other communications
to any party hereunder shall be in writing and shall be deemed given (i) when
delivered, if delivered in person, (ii) when sent by facsimile (provided the
fax is promptly confirmed by telephone confirmation thereof), (iii) when sent
by email (provided the email is promptly confirmed by telephone confirmation
thereof) and (iv) two business days following sending by overnight delivery by
an internationally recognized overnight courier, in each case, to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
3.3):
if to the Company, to:
Xxxxxxx International Limited
P.O. Box N-4777
Nassau, The Bahamas
Attention: General Counsel
Facsimile: (000) 000-0000
Email: Xxxxxxx.Xxxxxx@xxxxxxx.xxx
with a copy to:
Cravath, Swaine & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Email: XXxxxxxx@xxxxxxx.xxx
19
if to Istithmar, to its Authorized Representative:
Istithmar PJSC
Emirates Towers, Xxxxx 00
Xxxxxx Xxxxx Xxxx
PO Box 17000
Dubai, United Arab Emirates
Attention: Chief Executive Officer
Facsimile: x000 0 000 0000
Email: xxxx@xxxxxxxxx.xx
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Email: XXxxxxxxxx@xxxx.xxx
SECTION 3.4 Amendments; No Waivers. (a) No provision of this
Agreement may be amended or waived unless such amendment or waiver is in
writing and signed by each of the Company and Istithmar, and, in the case of a
waiver, by the party against whom the waiver is to be effective; provided that
no such amendment or waiver shall be effective against the Company without the
prior approval of a majority of the Company's Independent Directors.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 3.5 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors. Except as expressly provided herein, no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement.
SECTION 3.6 Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York applicable
to agreements made and to be performed entirely within such State and, to the
extent applicable, the federal securities laws of the United States.
SECTION 3.7 Jurisdiction. (a) Each party inter se irrevocably
submits to the exclusive jurisdiction of (a) the Supreme Court of the State of
New York, New York County, and (b) the United States District Court for the
Xxxxxxxx Xxxxxxxx xx Xxx Xxxx,
00
solely for the purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby or thereby. Each party
agrees to commence any such action, suit or proceeding either in the United
States District Court for the Southern District of New York or if such suit,
action or other proceeding may not be brought in such court for jurisdictional
reasons, in the Supreme Court of the State of New York, New York County. Each
of the parties hereto further irrevocably consents, and shall cause each of
its Affiliates to irrevocably consent, to the service of process in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, return receipt requested, to such party at
its address as provided for notices hereunder. Each party irrevocably and
unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby and thereby in (i) the Supreme Court of the State of New
York, New York County, or (ii) the United States District Court for the
Southern District of New York, and hereby and thereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(b) Istithmar confirms that (i) it is not a party to any agreement
with the United States of America relating in any way to the immunity of the
Istithmar from jurisdiction of courts, suit, execution upon a judgment,
attachment prior to judgment or in aid of execution upon a judgment or any
other legal process and (ii) it is, under the law of Dubai, subject to civil
and commercial law with respect to its obligations under this Agreement and
has agreed not to assert the defense of immunity, on the grounds of
sovereignty or otherwise, in respect of any suit, action or proceeding arising
out of or relating to claims under this or the consummation of the
transactions contemplated hereby or thereby.
SECTION 3.8 Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signature thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by the other party hereto.
SECTION 3.9 Specific Performance. The parties hereto (and any Person
who agrees to be bound hereby pursuant to the terms hereof) acknowledge and
agree, and shall cause each of its Affiliates to agree, that their respective
remedies at law for a breach or threatened breach of any of the provisions of
this Agreement would be inadequate and, in recognition of that fact, agree
that, in the event of a breach or threatened breach by any party (or any of
such Persons) of the provisions of this Agreement, in addition to any remedies
at law, they shall, respectively, without posting any bond, be entitled to
obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy which may then be available.
SECTION 3.10 No Third Party Beneficiaries. Nothing contained in this
Agreement, express or implied, is intended to or shall confer upon anyone
other than the
21
parties hereto (and their permitted successors and assigns) any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 3.11 Termination. The provisions of this Agreement shall
terminate as to any Holder upon the date such Holder no longer Beneficially
Owns any Registrable Securities.
SECTION 3.12 Severability. If any provision of this Agreement or the
application of any provision hereof to any party hereto or set of
circumstances is held invalid, the remainder of this Agreement and the
application of such provision to the other parties hereto or sets of
circumstances shall not be affected, unless the provisions held invalid shall
substantially impair the benefits of the remaining portions of this Agreement.
SECTION 3.13 Entire Agreement; 2001 Agreement. This Agreement, the
Company Purchase Agreement, the Governance Agreement, and the Letter Agreement
contain the entire agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings relating to such subject matter. Notwithstanding any provision
herein to the contrary, this Agreement shall not require the Company to take
any action or refrain from taking any action if the taking of such action or
refraining from taking such action will result in a breach of the 2001
Agreement.
[Signature pages follow]
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
XXXXXXX INTERNATIONAL LIMITED
By: __________________________
Name:
Title:
ISTITHMAR PJSC
By: __________________________
Name:
Title:
23
EXHIBIT B
CORPORATE GOVERNANCE AGREEMENT, dated as of [ ], 2004 (this
"Agreement"), by and between Xxxxxxx International Limited, a company
incorporated under the laws of The Bahamas (the "Company"), and Istithmar
PJSC, a company organized under the laws of Dubai ("Istithmar").
R E C I T A L S
A. Contemporaneously with the execution and delivery of this
Agreement, Istithmar has purchased an aggregate of 4,500,000 ordinary shares
of the Company, par value $0.001 per share, from the Company and certain
selling shareholders.
B. In connection with the sale of shares to Istithmar, the parties
have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Certain Definitions. For the purposes of this
Agreement, the following terms shall have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under direct or indirect common control with
such Person. For the purposes of this Agreement, "control," when used with
respect to any specified Person, shall mean, (a) as determined with respect to
each Person pursuant to the laws of the jurisdiction where such Person is
organized, the actual or deemed direction of the management and policies of
such Person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise, or (b) the power to direct the
management and policies of such Person whether through ownership of voting
securities, by contract or otherwise if there exists any agreement,
arrangement or understanding, whether oral or written, between such specified
Person and the Person who has such power (together with any Affiliates
thereof, the "Power Person") with regard to the Power Person taking an action
that the specified Person is prohibited from taking under this Agreement or
the specified Person not taking an action it is required to take under this
Agreement, or matters related to either of the foregoing; and the terms
"controlling" and "controlled" shall have meanings correlative to the
foregoing. For purposes of this Agreement, the Company shall be deemed not to
be an Affiliate of Istithmar or WLG.
"Beneficial Ownership" shall have the meaning set forth in Rule
13d-3 under the Exchange Act as in effect on the date of this Agreement; and
the terms "Beneficially Owned" and "Beneficially Owns" shall have meanings
correlative to the foregoing.
1
"Board" or "Board of Directors" means the Board of Directors of the
Company, except where the context requires otherwise.
"Caledonia" means Caledonia Investments PLC, a company incorporated
under the laws of England.
"Director" means a member of the Board of Directors.
"Equity Security" means (i) Shares, (ii) securities of the Company
convertible into or exchangeable for Shares and (iii) any options, warrants or
other rights issued by the Company to acquire Shares or securities of the
Company convertible into or exchangeable for Shares.
"Exchange Act" means the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder, as amended.
"Independent Director" means a Director of the Company who would be
considered an "independent director" under (a) NYSE Rule 303A(2) as such rule
may be amended, supplemented or replaced from time to time (whether by final
rule or otherwise and without giving effect to any permitted delays for
compliance or exceptions for foreign issuers) or (b) if the Company is not
listed on the NYSE, any comparable rule or regulation of the primary
securities exchange or quotation system on which the Shares are listed or
quoted (whether by final rule or otherwise and without giving effect to any
permitted delays for compliance or exceptions for foreign issuers).
"Istithmar Group" means Istithmar, Nakheel Co. LLC, Nakheel Holdings
1 LLC, Nakheel Holdings 2 LLC, Nakheel Holdings 3 LLC and, as of any date, any
of their respective Subsidiaries and any Person engaged in investment or
commercial activities which is under the authority and control of the current
Executive Chairman of Istithmar comparable to the authority and control he
exercises over Istithmar as of the date hereof.
"Istithmar Standstill Expiration Date" means the [THE FIFTH
ANNIVERSARY OF THE CLOSING], 2009.
"Istithmar's Percentage Interest" means, as of any date of
determination, the percentage of Voting Power (determined on the basis of the
number of outstanding shares of Voting Stock, as set forth in the most recent
SEC filing of the Company prior to such date that contained such information)
that is Beneficially Owned by the Istithmar Group as of such date. Voting
Stock acquired by any member of the Istithmar Group in breach of this
Agreement will be excluded from any calculation of Istithmar's Percentage
Interest.
"Letter Agreement" means the Letter Agreement, dated as of [ ],
2004, among the Company, WLG, Caledonia, Cement Merchants SA and Istithmar.
"NYSE" means The New York Stock Exchange, Inc.
2
"Person" means any individual, firm, corporation, partnership,
company, limited liability company, trust, joint venture, association,
governmental entity, unincorporated organization or other entity.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of [ ], 2004, between the Company and Istithmar.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933 and the rules and
regulations promulgated thereunder, as amended.
"Shares" means (a) the ordinary shares, par value $0.001 per share,
of the Company (including any dividends in kind thereon) or (b) any other
class of stock resulting from any reclassification, exchange, substitution,
combination, stock split or reverse stock split, including in connection with
any merger or otherwise, of such ordinary shares.
"Subsidiary" of any person means another person, (i) an amount of
the voting securities, other voting ownership or voting partnership interests
of which is sufficient to elect at least a majority of its Board of Directors
or other governing body or (ii) 50% or more of the equity interests of which,
is owned directly or indirectly by such first person or by another subsidiary
of such first person.
"13D Group" means any group of Persons formed for the purpose of
acquiring, holding, voting or disposing of Voting Stock that would be required
under Section 13(d) of the Exchange Act, and the rules and regulations
thereunder (as in effect on, and based on legal interpretations thereof
existing on, the date hereof), to file a statement on Schedule 13D with the
SEC as a "person" within the meaning of Section 13(d)(3) of the Exchange Act
if such group Beneficially Owned Voting Stock representing more than 5% of any
class of Voting Stock then outstanding (other than a group consisting of all
of Caledonia, Cement Merchants SA, Istithmar and WLG).
"Voting Power" means the ability to vote or to control, directly or
indirectly, by proxy or otherwise, the vote of any Voting Stock at the time
such determination is made; provided, however, that a Person will not be
deemed to have Voting Power as a result of an agreement, arrangement or
understanding to vote such Voting Stock if such agreement, arrangement or
understanding (a) arises solely from a revocable proxy or consent given in
response to a public proxy or consent solicitation made pursuant to the
applicable rules and regulations under the Exchange Act and (b) is not also
then reportable by such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report).
"WLG" means World Leisure Group Limited, a company incorporated
under the laws of the British Virgin Islands.
"WLG Group" means, as of any date, WLG and all of its Affiliates as
of such time, including Xxxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxx.
3
ARTICLE II
LIMITATIONS ON PURCHASES OF EQUITY SECURITIES
AND OTHER ACTIONS
SECTION 2.1. Limitation on Purchases of Equity Securities. At any
time prior to the Istithmar Standstill Expiration Date, Istithmar shall not,
and shall cause each member of the Istithmar Group not to, directly or
indirectly, acquire, agree to acquire or make a proposal to acquire Beneficial
Ownership of any Equity Securities; provided, however, that Istithmar (or a
member of the Istithmar Group) may acquire, agree to acquire or make a
proposal to acquire Beneficial Ownership of additional Equity Securities if,
after giving effect to such acquisition, the number of Shares Beneficially
Owned by the Istithmar Group would not exceed the number of Shares then
Beneficially Owned by the WLG Group (excluding any Shares received or acquired
by any member of the WLG Group pursuant to the exercise of any stock options,
or pursuant to any employment agreement or arrangement, employee stock
purchase plan, deferred compensation plan, severance plan, fringe benefit plan
or other executive compensation plan) based on the information contained in
the most recent filing by WLG or the Company with the SEC regarding WLG's
ownership of Equity Securities and other information provided by WLG or the
Company to Istithmar. For purposes of this Section 2.1, the Company represents
and warrants that the aggregate number of Shares Beneficially Owned, as of the
date of this Agreement, by the WLG Group (excluding any Shares received or
acquired pursuant to the exercise of any stock options, or pursuant to any
employment agreement or arrangement, employee stock purchase plan, deferred
compensation plan, severance plan, fringe benefit plan or other executive
compensation plan) is approximately 4,450,000 Shares.
SECTION 2.2. Additional Limitations. At any time prior to the
Istithmar Standstill Expiration Date, Istithmar shall not, and shall cause
each member of the Istithmar Group not to:
(a) "solicit" any proxies or become a "participant" in any
"solicitation" of proxies or in any "election contest" (as such terms are
defined in Regulation 14A of the Exchange Act) with respect to any Equity
Securities having the right to vote generally in any election of Directors
("Voting Stock") or seek to influence any person or 13D Group with respect to
the voting of any Voting Stock;
(b) propose or attempt to acquire or affect control of the Company
or directly or indirectly participate in, or encourage the formation of, any
13D Group which owns or seeks to acquire Beneficial Ownership of Voting Stock
or to acquire or affect control of the Company;
(c) except through the presence of its designee on the Board of
Directors, otherwise act, alone or in concert with others, to seek to control
or to influence in any manner the management, Board, policies or affairs of
the Company or propose or seek to effect any merger, consolidation, tender or
exchange offer, sale or purchase of all or a substantial portion of the assets
or other business combination or similar transaction or
4
any dissolution, liquidation, restructuring, recapitalization or similar
transaction, in each case involving the Company; or
(d) publicly request, propose or otherwise seek any amendment or
waiver of the provisions of Article II or otherwise request or propose any
such amendment or waiver in a manner which could reasonably be expected to
require the Company to make a public disclosure regarding such request or
proposal.
SECTION 2.3. Fiduciary Duties; Voting. Nothing in this Agreement
shall be construed to prohibit any Director designated for nomination by
Istithmar pursuant to Section 3.2(a) or (c) from taking any action solely in
his or her capacity as a member of the Board or from exercising his or her
fiduciary duties as a member of the Board or to prohibit any member of the
Istithmar Group from voting any Voting Stock in the manner it sees fit in its
it sole discretion except as expressly provided for in Section 3.3 of this
Agreement.
SECTION 2.4. Termination of Certain Limitations. If, at any time
prior to the Istithmar Relinquishment Event (as defined in Section 3.2(e)),
notwithstanding the fact that Istithmar has exercised its rights to designate
a Director in accordance with Section 3.2(a) or a replacement Director in
accordance with Section 3.2(c), as the case may be, and complied in all
material respects and in good faith with the requirements herein regarding the
designation of and voting for directors, including pursuant to Section 3.3, no
individual designated by Istithmar in accordance with Section 3.2(a) or (c) is
elected or appointed, as the case may be, to serve as a Director (or as a
replacement for a Director), then the restrictions applicable to Istithmar and
the Istithmar Group in this Article II and in Section 4.1 shall terminate
subject to notice from Istithmar and the expiration of a five business day
cure period during which the Board may appoint an individual designated by
Istithmar in accordance with Section 3.2(c).
ARTICLE III
BOARD OF DIRECTORS; VOTING
SECTION 3.1. New Directors. Upon execution and delivery of this
Agreement, the Company shall increase the size of the Board of Directors by
two members and Xxxxxx X. Xxxxxxx, the Company's Chief Executive Officer, and
an individual designated by Istithmar who satisfies the requirements of
Section 3.2(d) shall be appointed to fill the new seats.
SECTION 3.2. Nomination and Election of Directors.
(a) In connection with each meeting of the shareholders of the
Company in which Directors shall be elected, Istithmar shall have the right to
designate for nomination one nominee who satisfies the requirements of Section
3.2(d) for Director, and the Company shall cause such Person designated for
election in accordance with this Section 3.2(a) to be included in the Board's
slate of nominees for such meeting.
5
(b) Subject to applicable law, Istithmar shall be entitled to remove
any director designated by it. The Company shall take all reasonable efforts
consistent with applicable law to effectuate such removal.
(c) Istithmar shall have the right to designate any replacement for
a Director designated for nomination in accordance with Section 3.2(a) by
Istithmar upon the death, resignation, retirement, disqualification or removal
from office of such Director; provided that such replacement shall satisfy
Section 3.2(d). The Board of Directors shall appoint each person so
designated.
(d) Istithmar hereby agrees that any individual that it designates
as a nominee for Director or replacement Director shall satisfy all
administrative, regulatory or other governmental requirements applicable to
the Company and the other members of the Board of Directors.
(e) Notwithstanding any provisions of this Agreement to the
contrary, if, at any time, Istithmar's Percentage Interest falls below 5% (the
"Istithmar Relinquishment Event"), then Istithmar shall no longer have the
right pursuant to Section 3.2(a) or 3.2(c) to designate a nominee for Director
and shall immediately take all reasonable efforts consistent with applicable
law to cause its then current designee to resign as a member of the Board and
this Article III shall terminate.
SECTION 3.3. Solicitation and Voting of Shares. (a) The Company
shall use its reasonable best efforts to solicit from its shareholders
eligible to vote for the election of Directors proxies in favor of the nominee
designated by Istithmar in accordance with Section 3.2(a).
(b) In any election of Directors or any meeting of the shareholders
of the Company called expressly for the removal of Directors, each member of
the Istithmar Group shall attend in person or by proxy for purposes of
establishing a quorum and shall vote all its Voting Stock (i) in favor of any
nominee for Director designated by Istithmar in accordance with this Article
III and (ii) otherwise against the removal of any Director designated by
Istithmar in accordance with this Article III.
(c) Istithmar agrees that it will take all actions as a shareholder
of the Company, or as is otherwise within its control, as necessary to effect
the provisions of this Agreement.
SECTION 3.4. Fiduciary Duties; Replacement Nominees. (a) Nothing in
this Agreement shall be deemed to require the Board of Directors or any
committee or member thereof to take any action or refrain from taking any
action, or result in a breach of any provision of this Article III, if the
Board of Directors, such committee or Director determines in good faith that
taking such action or refraining from taking such action, as the case may be,
would cause a violation of fiduciary duties under applicable law.
(b) In the event that the Board of Directors (or any committee
thereof) relies on Section 3.4(a) or Section 3.2(d) to exclude a person
designated by Istithmar
6
pursuant to Section 3.2(a) or 3.2(c) from the Board's slate of nominees (or
otherwise take adverse action with respect to any such designee, including
failing to recommend the election of such designee), the Board of Directors
(or applicable committee) shall afford Istithmar a reasonable opportunity to
select a replacement designee for inclusion, subject to Section 3.2(e), on the
Board's slate of nominees or the Board, as the case may be.
ARTICLE IV
TRANSFER OF SHARES
SECTION 4.1. Limitation on Transfer of Shares. (a) Except as
permitted by Section 4.1(b), at any time prior to the Istithmar Standstill
Expiration Date, the members of the Istithmar Group shall not, without the
consent of a majority of the Independent Directors, sell, transfer or
otherwise dispose of Shares, directly or indirectly, to any Person or 13D
Group, if, after giving effect to such sale, transfer or other disposition
such Person or 13D Group would, to Istithmar's knowledge after due inquiry,
Beneficially Own, or have the right to acquire Beneficial Ownership of, more
than 4.9% of the Company's Voting Stock.
(b) Notwithstanding any of the foregoing, Istithmar may at any time:
(i) transfer any or all of its Shares to a member of the Istithmar
Group which agrees in writing to be bound by the terms and provisions of
this Agreement to the same extent as the transferor party (a "Permitted
Transferee") and remains a member of the Istithmar Group at all times
following such transfer; provided that Istithmar shall not (A) permit
such Permitted Transferee to cease to be a member of the Istithmar Group
unless Istithmar has first reacquired all such transferred Shares from
the Permitted Transferee and (B) in any manner be released from any of
its obligations hereunder as a result of any transfer to a Permitted
Transferee.
(ii) sell, transfer or otherwise dispose of any of its Shares in an
Underwritten Public Offering (as defined in the Registration Rights
Agreement) pursuant to any registration effected under the Registration
Rights Agreement, subject to the conditions and limitations contained
therein;
(iii) make a sale of Shares otherwise prohibited by Section 4.1(a)
if such sale is affected as (A) a "brokers' transaction" (as such term is
defined for purposes of Rule 144 under the Securities Act) or (B) other
open-market sale (including a block trade) by a broker in which no more
than 500,000 Shares are sold to any single Person or 13D Group; or
(iv) sell, transfer or otherwise dispose of any of its Shares
pursuant to any bona fide tender or exchange offer by any Person (other
than by a member of the Istithmar Group, a member of any Group (as
defined in the Registration Rights and Governance Agreement, dated as of
July 3, 2001, among the Company, Sun International Investments Limited,
WLG, Kersaf Investments Limited, Caledonia,
0
Xxxxxxxxxx Xxxxxxx, XXX, Xxxxxxxxx Limited, Royale Resorts Holdings
Limited and Sun International Inc.) or by any 13D Group that includes any
such member) for all of the Equity Securities that has not been
solicited, directly or indirectly, by any member of the Istithmar Group
or any such Group.
(c) Purported transfers of Shares that are not in compliance with
this Article IV shall be void. For the avoidance of doubt, the sale of Shares
to the Company shall not be prohibited by this Article IV.
ARTICLE V
BUSINESS OPPORTUNITIES
SECTION 5.1. Business Opportunities. (a) If any member of the
Istithmar Group wishes to pursue, directly or indirectly, an investment in any
other Venue-based Entertainment Business (as defined below) outside the Middle
East (as defined below), Istithmar shall first present the opportunity to the
Company, including a description of all material terms known to such member of
the Istithmar Group and all out-of-pocket costs and expenses incurred by such
member of the Istithmar Group. An "investment" for the purposes of this
Section 5.1 shall not include an investment (a) in less than 5% (or of up to
$30 million if greater than 5%) of the outstanding stock of a publicly-listed
Venue-based Entertainment Business or a company owning such business or (b) in
an amount less than $30 million in the outstanding equity capital of a
privately owned Venue-based Entertainment Business or a company owning such a
business. "Venue-based Entertainment Business" means any enterprise, entity or
project that owns and/or operates luxury hotels, theme parks, gaming or other
resort activities at one or more fixed geographic sites. "Middle East" means
the geographic area which includes the countries of United Arab Emirates,
Bahrain, Qatar, Egypt, Oman, Yemen, Lebanon, Syria, Iran, Iraq, Jordan and
Saudi Arabia.
(b) Within 60 days of the presentation of an opportunity pursuant to
Section 5.1(a), the Company shall notify Istithmar whether it desires to
assume the opportunity. To "assume the opportunity" means undertaking the
investigation, investment, development, acquisition and/or management of the
relevant investment.
(c) If the Company determines to assume the opportunity, the Company
will reimburse such member of the Istithmar Group for all of its out-of-pocket
costs and expenses related to the identification or evaluation of the
potential business opportunity.
(d) If the Company declines to assume the opportunity or fails to
provide notice within 60 days of the presentation of an opportunity pursuant
to Section 5.1(a), such member of the Istithmar Group shall be entitled to
pursue the proposed opportunity so long as its ultimate involvement in such
opportunity shall be on terms in the aggregate no more favorable than those
presented to the Company pursuant to Section 5.1(a).
(e) Notwithstanding any provision of this Agreement to the contrary,
this Article V shall terminate in its entirety immediately upon (i) the
occurrence of the
8
Istithmar Relinquishment Event or (ii) if at any time (1) the percentage of
Voting Power (determined on the basis of the number of outstanding shares of
Voting Stock, as set forth in the most recent SEC filing of the Company prior
to such date that contained such information) that is Beneficially Owned by
the WLG Group falls below 5% or (2) neither Xxxxxxx Xxxxxxx nor Xxxxxx X.
Xxxxxxx serves as an executive officer of the Company.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Adjustments. References to numbers of Shares and to
sums of money contained herein shall be adjusted to account for any
reclassification, exchange, combination, substitution, combination, stock
split or reverse stock split of the Shares, including in connection with any
merger or otherwise.
SECTION 6.2. Notices. All notices, requests and other communications
to any party hereunder shall be in writing and shall be deemed given (i) when
delivered, if delivered in person, (ii) when sent by facsimile (provided the
fax is promptly confirmed by telephone confirmation thereof), (iii) when sent
by email (provided the email is promptly confirmed by telephone confirmation
thereof) and (iv) two business days following sending by overnight delivery by
an internationally recognized overnight courier, in each case, to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
6.2):
if to the Company, to:
Xxxxxxx International Limited
P.O. Box N-4777
Nassau, The Bahamas
Attention: General Counsel
Facsimile: (000) 000-0000
Email: Xxxxxxx.Xxxxxx@xxxxxxx.xxx
with a copy to:
Cravath, Swaine & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Email: XXxxxxxx@xxxxxxx.xxx
9
if to the Istithmar, to:
Istithmar PJSC
Emirates Towers, Xxxxx 00
Xxxxxx Xxxxx Xxxx
PO Box 17000
Dubai, United Arab Emirates
Attention: Chief Executive Officer
Facsimile: x000 0 000 0000
Email: xxxx@xxxxxxxxx.xx
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Email: XXxxxxxxxx@xxxx.xxx
SECTION 6.3. Legend. (a) Istithmar agrees to the imprinting, until
the Istithmar Standstill Expiration Date, of a legend on certificates
representing all of its Shares, to the following effect:
THE SALE, TRANSFER OR OTHER DISPOSITION (EACH A "TRANSFER") OF ANY
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY
THE TERMS OF THE CORPORATE GOVERNANCE AGREEMENT, DATED [ ], 2004
(THE "CORPORATE GOVERNANCE AGREEMENT"), AMONG THE COMPANY AND THE
SHAREHOLDER NAMED THEREIN, A COPY OF WHICH MAY BE INSPECTED AT THE
COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER THE
TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE COMPANY UNLESS AND
UNTIL THE TRANSFER HAS BEEN MADE IN COMPLIANCE WITH THE TERMS OF THE
CORPORATE GOVERNANCE AGREEMENT.
(b) The Company shall remove the legend described in clause (a) from
certificates representing Shares owned by Istithmar or a Permitted Transferee
(i) if the Shares represented thereby are sold, transferred or otherwise
disposed of in compliance with this Agreement (other than to a Permitted
Transferee) and (ii) immediately following the Istithmar Standstill Expiration
Date.
SECTION 6.4. Amendments; No Waivers. (a) No provision of this
Agreement may be amended or waived unless such amendment or waiver is in
writing and signed by each of the Company and Istithmar; provided that no such
amendment or waiver
10
shall be effective against the Company without the prior approval of a
majority of the Company's Independent Directors.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 6.5. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors. No party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement.
SECTION 6.6. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York applicable
to agreements made and to be performed entirely within such State and, to the
extent applicable, the federal securities laws of the United States.
SECTION 6.7. Change in Law. In the event any law, rule or regulation
comes into force or effect (including by amendment) which conflicts with the
terms and conditions of this Agreement, the parties shall negotiate in good
faith to revise the Agreement to achieve the parties' intention set forth
herein.
SECTION 6.8. Jurisdiction.
(a) Each party inter se irrevocably submits to the exclusive
jurisdiction of (a) the Supreme Court of the State of New York, New York
County, and (b) the United States District Court for the Southern District of
New York, solely for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby. Each
party agrees to commence any such action, suit or proceeding either in the
United States District Court for the Southern District of New York or if such
suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New
York County. Each of the parties hereto further irrevocably consents, and
shall cause each of its Affiliates to irrevocably consent, to the service of
process in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, return receipt requested, to
such party at its address as provided for notices hereunder. Each party
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby and thereby in (i) the Supreme Court of the
State of New York, New York County, or (ii) the United States District Court
for the Southern District of New York, and hereby and thereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
11
(b) Istithmar confirms that (i) it is not a party to any agreement
with the United States of America relating in any way to the immunity of the
Istithmar from jurisdiction of courts, suit, execution upon a judgment,
attachment prior to judgment or in aid of execution upon a judgment or any
other legal process and (ii) it is, under the law of Dubai, subject to civil
and commercial law with respect to its obligations under this Agreement and
has agreed not to assert the defense of immunity, on the grounds of
sovereignty or otherwise, in respect of any suit, action or proceeding arising
out of or relating to claims under this or the consummation of the
transactions contemplated hereby or thereby.
SECTION 6.9. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signature thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by the other party hereto.
SECTION 6.10. Specific Performance. The parties hereto (and any
Person who agrees to be bound hereby pursuant to the terms hereof) acknowledge
and agree, and shall cause each of its Affiliates to agree, that their
respective remedies at law for a breach or threatened breach of any of the
provisions of this Agreement would be inadequate and, in recognition of that
fact, agree that, in the event of a breach or threatened breach by any party
(or any of such Persons) of the provisions of this Agreement, in addition to
any remedies at law, they shall, respectively, without posting any bond, be
entitled to obtain equitable relief in the form of specific performance, a
temporary restraining order, a temporary or permanent injunction or any other
equitable remedy which may then be available.
SECTION 6.11. Interpretation; Certain Definitions. When a reference
is made in this Agreement to a Section or Subsection, such reference shall be
to a Section or Subsection of, this Agreement unless otherwise indicated. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation". The words "hereof", "herein", "hereto", "hereby" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
The term "or" is not exclusive. The word "extent" in the phrase "to the
extent" shall mean the degree to which a subject or other thing extends, and
such phrase shall not mean simply "if". The definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such
terms. Any agreement or instrument defined or referred to herein or in any
agreement or instrument that is referred to herein means such agreement or
instrument as from time to time amended, modified or supplemented. References
to a person are also to its permitted successors and assigns.
SECTION 6.12. No Third Party Beneficiaries. Nothing contained in
this Agreement, express or implied, is intended to or shall confer upon anyone
other than the
12
parties hereto (and their permitted successors and assigns) any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 6.13. Severability. If any provision of this Agreement or
the application of any provision hereof to any party hereto or set of
circumstances is held invalid, the remainder of this Agreement and the
application of such provision to the other parties hereto or sets of
circumstances shall not be affected, unless the provisions held invalid shall
substantially impair the benefits of the remaining portions of this Agreement.
SECTION 6.14. Confidentiality. (a) Istithmar agrees to maintain, and
shall cause each of member of the Istithmar Group and its and their respective
directors, officers, employees and other representatives to maintain, the
confidentiality of all material non-public information obtained from the
Company or any of its Subsidiaries or their respective directors, officers,
employees or agents, and not to use such information for any purpose other (i)
than the evaluation and protection of the investment by Istithmar in the
Company, (ii) the exercise by Istithmar of its rights under this Agreement or
any of the other agreements entered into among Istithmar, the Company and/or
certain of its shareholders in connection with Istithmar's investment in the
Company and (iii) the exercise by the directors designated by Istithmar of
their fiduciary duties as members of the Board.
(b) Notwithstanding the foregoing, the confidentiality obligations
of Section 6.14(a) will not apply to information obtained other than in
violation of this Agreement:
(i) which Istithmar or any member of the Istithmar Group or any of
its or their respective directors, officers, employees or other
representatives is required to disclose by judicial or administrative
process, or by other requirements of applicable law or regulation or any
governmental authority; provided, however, that, where and to the extent
practicable, the disclosing party (A) gives the Company reasonable notice
of any such requirement and, to the extent protective measures consistent
with such requirement are available, the opportunity to seek appropriate
protective measures and (B) cooperates at the Company's sole cost and
expense with the Company in attempting to obtain such protective
measures;
(ii) which becomes available to the public other than as a result of
a breach of Section 6.14; or
(iii) which has been provided to Istithmar or any member of the
Istithmar Group or its or their respective directors, officers, employees
or other representatives, by a third party who obtained such information
other than from any such Person or other than as a result of a breach of
Section 6.14.
[Signature pages follow]
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
XXXXXXX INTERNATIONAL LIMITED
By:________________________________
Name:
Title:
ISTITHMAR PJSC
By:________________________________
Name:
Title:
14
EXHIBIT C
Xxxxxxx International Limited
P.O. Box N-4777
Nassau, The Bahamas
July [ ], 2004
Caledonia Investments PLC Cement Merchants SA
Cayzer House P.O. Box 777
1 Xxxxxx Xxxx Xxxxxx Xxxxxxxx 000
Xxxxxx X0 0XX FL-9497 Triesenberg
England Principality of Liechtenstein
Istithmar PJSC World Leisure Group Limited
Emirates Towers, Level 47 c/o Trident Trust Company Limited
Xxxxxx Xxxxx Xxxx XX Xxx 000, Xxxx Xxxx
PO Box 17000 Tortola, British Virgin Islands
Dubai, United Arab Emirates
Letter Agreement
----------------
Ladies and Gentlemen:
Reference is made to (a) the Stock Purchase Agreement dated as of
July 15, 2004, between Xxxxxxx International Limited (the "Company") and
Istithmar PJSC ("Istithmar"), (b) the Stock Purchase Agreements dated as of
July 15, 2004 (the "Secondary Purchase Agreements"), between certain selling
shareholders and Istithmar, (c) the Corporate Governance Agreement dated [ ],
2004 (the "Governance Agreement") between the Company and Istithmar (d) the
Registration Rights Agreement dated [ ], 2004 (the "Istithmar Registration
Rights Agreement"), between the Company and Istithmar and (e) the Registration
Rights and Governance Agreement dated as of July 3, 2001 (as in effect on the
date hereof, the "2001 Agreement"), among the Company, Caledonia Investments
PLC ("Caledonia"), Cement Merchants SA ("CMS"), World Leisure Group Limited
("WLG") and certain other parties. Capitalized terms used but not otherwise
defined herein shall have the meaning ascribed to such terms in the 2001
Agreement.
Pursuant to this letter agreement and in connection with the
foregoing, in exchange for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
(a) Istithmar shall, and if applicable, shall cause each of its
Controlled Affiliates to, (i) vote all Shares it Beneficially Owns at any
Shareholders Meeting or in any Written Consent with respect to such Shares, in
favor of any nominee to the Board of Directors of the Company designated by
WLG, Caledonia or CMS in accordance with Section 3.4 of the 2001 Agreement and
(ii) take all other actions reasonably requested by
1
each of WLG, Caledonia and CMS to cause each of their respective nominees to
be appointed to the Board of Directors of the Company in accordance with
Section 3.4 of the 2001 Agreement and to give effect to the provisions of this
letter;
(b) Each of Caledonia, CMS and WLG shall, and in the case of WLG,
CMS and Caledonia, if applicable, shall cause each of its Controlled
Affiliates to, (i) vote all Shares it Beneficially Owns (including any Proxy
Shares) at any Shareholders Meeting or in any Written Consent with respect to
such Shares, in favor of any nominee to the Board of Directors of the Company
designated by Istithmar in accordance with Section 3.2 of the Governance
Agreement, and (ii) take all other actions reasonably requested by Istithmar
to cause such nominee to be appointed to the Board of Directors of the Company
and to give effect to the provisions of Article III of the Governance
Agreement and this letter;
(c) Caledonia agrees that the consummation of the purchase and sale
of Shares pursuant to the Secondary Purchase Agreement to which it is a party
shall constitute the sale of 1,300,000 "Caledonia Tag Shares" for purposes of
Section 5.3.2(b) of the 2001 Agreement;
(d) CMS agrees that the consummation of the purchase and sale of
Shares pursuant to the Secondary Purchase Agreement to which it is a party
shall constitute the sale of 200,000 "CMS Tag Shares" for purposes of Section
5.3.2(b) of the 2001 Agreement; and
(e) Each of Caledonia, CMS and WLG acknowledges and agrees that the
Purchaser is a "Permitted Transferee" and a "Holder" of the Shares acquired
pursuant to the Secondary Purchase Agreements and that such Shares constitute
"Registrable Securities" for purposes of the 2001 Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this letter
agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
Very truly yours,
XXXXXXX INTERNATIONAL LIMITED,
By
---------------------------
Name:
Title:
2
Accepted and agreed to as of
the date first above written:
CALEDONIA INVESTMENTS PLC, CEMENT MERCHANTS SA,
By By
_____________________________ _____________________________
Name: Name:
Title: Title:
ISTITHMAR PJSC, WORLD LEISURE GROUP LIMITED,
By By
_____________________________ _____________________________
Name: Name:
Title: Title:
3
EXHIBIT D
World Leisure Group Limited
c/o Trident Trust Company Limited
XX Xxx 000, Xxxx Xxxx
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
Istithmar PJSC
Emirates Towers, Xxxxx 00
Xxxxxx Xxxxx Xxxx
XX Xxx 00000
Xxxxx, Xxxxxx Xxxx Xxxxxxxx
[ ], 2004
Ladies and Gentlemen:
Reference is made to the Stock Purchase Agreement dated as of July
15, 2004, between Xxxxxxx International Limited (the "Company") and Istithmar
PJSC ("Istithmar"), and certain transactions related thereto. Capitalized
terms used but not otherwise defined herein shall have the meaning ascribed to
such terms in the Corporate Governance Agreement dated as of [ ], 2004,
between the Company and Istithmar.
In order to facilitate the transactions referenced above, and in
exchange for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
(a) If any member of the WLG Group wishes to pursue, directly or
indirectly, an investment in any other Venue-based Entertainment Business (as
defined below) outside the Middle East (as defined below), WLG shall first
present the opportunity to the Company, including a description of all
material terms known to the member of the WLG Group and all out-of-pocket
costs and expenses incurred by the member of the WLG Group. An "investment"
for the purposes of this Agreement shall not include an investment (a) in less
than 5% (or of up to $30 million if greater than 5%) of the outstanding stock
of a publicly-listed Venue-based Entertainment Business or a company owning
such business or (b) in an amount less than $30 million in the outstanding
equity capital of a privately owned Venue-based Entertainment Business or a
company owning such a business. "Venue-based Entertainment Business" means any
enterprise, entity or project that owns and/or operates luxury hotels, theme
parks, gaming or other resort activities at one or more fixed geographic
sites. "Middle East" means the
1
geographic area which includes the countries of United Arab Emirates, Bahrain,
Qatar, Egypt, Oman, Yemen, Lebanon, Syria, Iran, Iraq, Jordan and Saudi
Arabia.
(b) If within 60 days of the presentation of an opportunity the
Company (i) notifies WLG that it desires to assume the opportunity and (ii)
agrees to reimburse the applicable member of the WLG Group for all of its
out-of-pocket costs and expenses related to the identification or evaluation
of the potential business opportunity, the Company shall be entitled to assume
the opportunity. To "assume the opportunity" means undertaking the
investigation, investment, development, acquisition and/or management of the
relevant investment.
(c) If the Company declines to assume the opportunity or fails to
provide notice to WLG within 60 days of the presentation of an opportunity
pursuant to clause (a) above, such member of the WLG Group shall be entitled
to pursue the proposed opportunity so long as its ultimate involvement in such
opportunity shall be on terms in the aggregate no more favorable than those
presented to the Company pursuant to clause (a) above.
(d) Notwithstanding any provision of this letter agreement to the
contrary, this letter agreement will terminate (i) in its entirety immediately
upon (A) the occurrence of the Istithmar Relinquishment Event or the
termination for any other reason of Istithmar's obligations under Article V of
the Corporate Governance Agreement dated [ ], 2004 between the Company and
Istithmar or (B) if at any time (1) the percentage of Voting Power (determined
on the basis of the number of outstanding shares of Voting Stock, as set forth
in the most recent SEC filing of the Company prior to such date that contained
such information) that is Beneficially Owned by the WLG Group falls below 5%
or (2) neither Xxxxxxx Xxxxxxx nor Xxxxxx X. Xxxxxxx (each, an "Executive")
serves as an executive officer of the Company or (ii) with respect to any
Executive, at any time that such Executive no longer serves as an executive
officer of the Company, with the effect that such Executive may pursue, either
directly or through any entity (x) that is not a member of the WLG Group or
(y) that would be a member of the WLG Group solely as a result of such
entity's relationship to such Executive, any opportunity without regard to
this letter agreement.
[Signature page follows]
2
IN WITNESS WHEREOF, the parties hereto have caused this letter
agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
Very truly yours,
WORLD LEISURE GROUP LIMITED,
By:
-----------------------------
Name:
Title:
Accepted and agreed to as of
the date first above written:
ISTITHMAR PSJC
By:
---------------------------
Name:
Title:
3
