Exhibit 2.2
SHARE OWNING SUBSIDIARIES
RESTRUCTURING AGREEMENT
SHARE OWNING SUBSIDIARIES RESTRUCTURING AGREEMENT, dated as of July 21,
2000, by and among SEA CONTAINERS LTD., a Bermuda company ("SCL"), SEA
CONTAINERS HOUSE LTD., a Bermuda company and a wholly-owned subsidiary of SCL
("SC HOUSE"), MARINE CONTAINER INSURANCE CO. LTD., a Bermuda company and a
wholly-owned subsidiary of SCL ("MARCON"), SEA CONTAINERS ASIA LTD., a Hong Kong
company and a wholly-owned subsidiary of SCL ("SC ASIA"), SEA CONTAINERS
HOLDINGS LTD., a Bermuda company and a wholly-owned subsidiary of SCL ("SC
HOLDINGS"), CONTENDER 2 LTD., a Bermuda company and a wholly-owned subsidiary of
SCL ("CONTENDER"), and ORIENT-EXPRESS HOTELS LTD., a Bermuda company and a
wholly-owned subsidiary of SCL ("XXXX").
RECITALS
1. SCL's authorized share capital includes (i) Class A Common Shares (the
"SCL CLASS A SHARES"), of which there are 16,757,689 such Shares issued and
outstanding and (ii) Class B Common Shares (the "SCL CLASS B SHARES"), of which
there are 14,658,225 such Shares issued and outstanding, of which 12,900,000 SCL
Class B Shares are owned by four subsidiaries of SCL as set forth below:
Number of SCL
COMPANY CLASS B SHARES OWNED
SC House 6,064,000
MarCon 2,907,000
SC Asia 2,853,000
SC Holdings 1,076,000
2. XXXX'x authorized share capital includes (i) Class A Common Shares (the
"XXXX CLASS A SHARES"), of which there are 23,440,601 such Shares issued and
outstanding, all of which are owned by SCL and (ii) XXXX Class B Common Shares
(the "XXXX CLASS B SHARES"), of which there are 20,503,877 such Shares issued
and outstanding, all of which are owned by SCL.
3. It is expected that SCL and XXXX will offer and sell XXXX Class A
Shares to the public in an underwritten public offering (the "XXXX IPO") and
that in connection with the XXXX IPO it may be desirable to adjust the number of
XXXX Class A Shares and XXXX Class B Shares outstanding in order to be able to
set the initial public offering price of the XXXX Class A Shares within a range
recommended by the underwriters (the "IPO Adjustment").
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4. It is expected that SCL will distribute all of the XXXX Class A Shares
owned by SCL to the holders of SCL Class A Shares, and all of the XXXX Class B
Shares owned by SCL to the holders of SCL Class B Shares (including to SC House,
MarCon, SC Asia and SC Holdings) (the "SPINOFF"). It is currently expected that
the Spinoff will be accomplished within approximately 180 days of the date of
the XXXX IPO; however, that the parties recognize the possibility that the date
of the Spinoff may be postponed as the result of the occurrence of unforeseen
events or circumstances beyond the control of SCL, which may necessitate
postponing the Spinoff.
5. Prior to the XXXX IPO, SCL intends to transfer to XXXX all of its
ownership of SC House, MarCon, SC Asia and SC Holdings (collectively, the "XXXX
XXXX"), and prior to such transfer SCL, Contender, and the XXXX XXXx desire to
make certain mutual agreements regarding the purchase and voting of their SCL
Class B Shares and their XXXX Class B Shares, and in that regard:
(a) to the extent that such shares are not converted into XXXX Class A
Shares or distributed in the Spinoff, SCL wishes to give SC House the option to
purchase up to 18,044,478 XXXX Class B Shares (as such number may be adjusted by
the IPO Adjustment) owned by SCL, and
(b) the XXXX XXXx wish (i) to give Contender the option to purchase up
to 12,900,000 SCL Class B Shares owned by the XXXX XXXx and (ii) to agree to
vote up to 12,900,000 SCL Class B Shares owned by the XXXX XXXx in accordance
with the instructions of Contender.
6. The purpose of this Agreement is to set forth the agreements of the
parties regarding (i) the respective purchase options and the voting rights of
the SCL Class B Shares held by the XXXX XXXx and the XXXX Class B Shares held by
SCL and (ii) the transfer by SCL to XXXX of its ownership of SC House, MarCon,
SC Asia and SC Holdings.
NOW, THEREFORE, in consideration of the mutual premises and covenants set
forth below and intending to be legally bound hereby, the parties agree as
follows:
I. GENERAL
SECTION 1. VOTING. From the date hereof, until the earlier of (a) the
consummation of the Spinoff or (b) the fifth anniversary of the date of this
Agreement, with respect to all matters on which holders of SCL Class B Shares
are entitled to vote, the XXXX XXXx agree to vote all SCL Class B Shares which
they hold in accordance with the written instructions of Contender, except as
provided in Section 6(v).
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SECTION 2. WAIVER OF DIVIDENDS AND DISTRIBUTIONS. Until the earlier of (a)
the consummation the sales effected upon the exercise of the purchase options
granted to Contender pursuant to Section 3 hereof, or (b) the fifth anniversary
of the date of this Agreement, except with respect to the Spinoff distribution
and with respect to any stock dividend or stock split, reclassification or other
change which would result in an adjustment pursuant to Section 3(f) hereof, the
XXXX XXXx agree to waive all dividends and distributions to which they would
otherwise be entitled to receive as the record owners of SCL Class B Shares.
II. CONTENDER PURCHASE OPTIONS
SECTION 3. CONTENDER PURCHASE OPTIONS. At any time between and including
(i) the earlier of (x) the Spinoff or (y) the second anniversary of the date of
this Agreement and (ii) the fifth anniversary of the date of this Agreement,
Contender shall have the right and options (the "CONTENDER PURCHASE OPTIONS") to
purchase up to an aggregate maximum of 12,900,000 SCL Class B Shares (subject to
adjustment as set forth in paragraph (f) below) from SC House, MarCon, SC Asia
and SC Holdings, all on the terms and conditions set forth below:
(a) SC HOUSE. Contender shall have the right to purchase from SC House,
for cash, any or all SCL Class B Shares held by SC House, up to a maximum of
6,064,000 SCL Class B Shares (subject to adjustment as set forth in paragraph
(f) below), at a price of $0.01 per SCL Class B Share.
(b) MARCON. Contender shall have the right to purchase from MarCon, for
cash, any or all SCL Class B Shares held by MarCon, up to a maximum of 2,907,000
SCL Class B Shares (subject to adjustment as set forth in paragraph (f) below),
at a price of $0.01 per SCL Class B Share.
(c) SC ASIA. Contender shall have the right to purchase from SC Asia, for
cash, any or all SCL Class B Shares held by SC Asia, up to a maximum of
2,853,000 SCL Class B Shares (subject to adjustment as set forth in paragraph
(f) below), at a price of $0.01 per SCL Class B Share.
(d) SC HOLDINGS. Contender shall have the right to purchase from SC
Holdings, for cash, any or all SCL Class B Shares held by SC Holdings, up to a
maximum of 1,076,000 SCL Class B Shares (subject to adjustment as set forth in
paragraph (f) below), at a price of $0.01 per SCL Class B Share.
CONTENDER COVENANTS AND AGREES THAT IS WILL EXERCISE THE CONTENDER
PURCHASE OPTIONS IN FULL EITHER (I) IMMEDIATELY FOLLOWING THE SPINOFF OR (II) IF
THE SPINOFF DOES NOT OCCUR, NO LATER THAN THE FIFTH ANNIVERSARY OF THE DATE OF
THIS AGREEMENT.
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(e) CONTENDER PURCHASE OPTIONS CLOSINGS. If Contender wishes to exercise
its option to purchase SCL Class B Shares pursuant to this Section 3, it shall
provide SC House, MarCon, SC Asia, or SC Holdings, as the case may be, a written
notice (an "OPTION NOTICE") specifying the number of SCL Class B Shares to be
purchased and the aggregate purchase price to be paid. The closing of a purchase
of shares pursuant to this Section 3 shall take place at the offices of Xxxxxxx
Xxxxxxxx & Xxxxx, or at such other place as the parties shall agree, no later
than 30 days after delivery of an Option Notice. At the time of a closing
hereunder the purchase price shall be paid in cash and each certificate
representing shares to be tendered shall be endorsed for transfer, free and
clear of all liens, pledges, encumbrances, claims, security interests, charges,
voting trusts, voting agreements, other agreements, rights options, warrants or
restrictions or claims of any kind, nature or description, other than set forth
in this Agreement.
(f) ADJUSTMENTS FOR STOCK DIVIDENDS AND SPLITS, RECLASSIFICATIONS AND
MERGERS. In the event that there shall be a subdivision or combination of the
outstanding shares of SCL Class B Shares into a greater or smaller number of
shares (whether by stock dividend, stock split, reverse stock split or
otherwise), the number of SCL Class B Shares subject to the purchase options set
forth herein, and the purchase price for each such share, shall be
proportionately adjusted. In the event of a reclassification or change in the
outstanding SCL Class B Shares, or any consolidation or merger to which SCL is a
party (except a merger which does not result in any reclassification or change
in the outstanding SCL Class B Shares), or in the case of any sale or conveyance
to another person or entity of all or substantially all of the assets of SCL for
shares or securities of another entity or corporation, then and in each such
event Contender shall have the right to purchase from SC House, MarCon, SC Asia,
or SC Holdings, as the case may be, the same kind and amount of shares and other
securities of such other entity or corporation which were received by the
holders of SCL Class B Shares upon any such reclassification, or merger, and the
exercise price of the purchase option shall be appropriately adjusted.
III. SC HOUSE PURCHASE OPTION IF SPINOFF DOES NOT OCCUR
SECTION 4. SC HOUSE PURCHASE OPTION. (a) If the Spinoff does not occur,
then at any time between and including (i) the second anniversary of the date of
this Agreement and (ii) the fifth anniversary of the date of this Agreement, SC
House shall have the right and option (the "SC HOUSE PURCHASE OPTION") to
purchase, for cash, up to an aggregate maximum of 18,044,478 XXXX Class B Shares
(subject to the IPO Adjustment and/or as set forth in paragraph (c) below) from
SCL, at a price of $0.01 per XXXX Class B Share.
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(b) SC HOUSE PURCHASE OPTION CLOSING. If SC House wishes to exercise its
option to purchase XXXX Class B Shares pursuant to this Section 4, it shall
provide SCL a written notice (an "OPTION NOTICE") specifying the number of XXXX
Class B Shares to be purchased and the aggregate purchase price to be paid. The
closing of a purchase of shares pursuant to this Section 4 shall take place at
the offices of Xxxxxxx Xxxxxxxx & Xxxxx, or at such other place as the parties
shall agree, no later than 30 days after delivery of an Option Notice. At the
time of a closing hereunder the purchase price shall be paid in cash and each
certificate representing shares to be tendered shall be endorsed for transfer,
free and clear of all liens, pledges, encumbrances, claims, security interests,
charges, voting trusts, voting agreements, other agreements, rights options,
warrants or restrictions or claims of any kind, nature or description, other
than set forth in this Agreement.
(c) ADJUSTMENTS FOR STOCK DIVIDENDS AND SPLITS, RECLASSIFICATIONS AND
MERGERS. In the event that there shall be a subdivision or combination of the
outstanding shares of XXXX Class B Shares into a greater or smaller number of
shares (whether by stock dividend, stock split, reverse stock split or
otherwise), the number of XXXX Class B Shares subject to the purchase option set
forth herein, and the purchase price for each such share, shall be
proportionately adjusted. In the event of a reclassification or change in the
outstanding XXXX Class B Shares, or any consolidation or merger to which XXXX is
a party (except a merger which does not result in any reclassification or change
in the outstanding XXXX Class B Shares), or in the case of any sale or
conveyance to another person or entity of all or substantially all of the assets
of XXXX for shares or securities of another entity or corporation, then and in
each such event SC House shall have the right to purchase from SCL the same kind
and amount of shares and other securities of such other entity or corporation
which were received by the holders of XXXX Class B Shares upon any such
reclassification, or merger, and the exercise price of the purchase option shall
be appropriately adjusted.
IV. TRANSFER OF XXXX XXXX
SECTION 5. TRANSFER OF XXXX XXXX. (a) SCL agrees that prior to the XXXX
IPO, it will transfer and convey to XXXX all of its right, title and interest in
and to all of the outstanding capital stock of each of SC House, MarCon, SC Asia
and SC Holdings.
(b) SCL agrees to consummate the transfer of the XXXX XXXx provided for in
this Section 5 at a closing to be held at the offices of Xxxxxxx Xxxxxxxx &
Xxxxx, Cedar House, 41 Cedar Avenue, Xxxxxxxx, Bermuda HM EX, or at such other
time or place as the parties shall mutually agree. At the closing, SCL shall
deliver certificates representing all of the outstanding capital stock of each
of SC House, MarCon, SC Asia and SC Holdings, in each case
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duly endorsed for transfer, free and clear of all liens, pledges, encumbrances,
claims, security interests, charges, voting trust, voting agreements, other
agreements, rights options, warrants or restrictions or claims of any kind,
nature or descriptions, other than set forth in this Agreement.
V. REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF EACH XXXX SOS.
Each of SC House, MarCon, SC Asia and SC Holdings represents, warrants and
covenants that:
(i) this Agreement has been duly executed and delivered by it and
constitutes a legal, valid and binding obligation of it enforceable against it
in accordance with its terms;
(ii) the execution, delivery and performance by it of this Agreement will
not conflict with, require any consent, waiver or approval under, or result in a
breach of default under, any of the terms of any contract, commitment or other
obligation (written or oral) to which it is bound;
(iii) the execution, delivery and performance of this Agreement by it and
all transactions contemplated hereby have been duly authorized by all necessary
corporate action on its part, and this Agreement constitutes the legal, valid
and binding contract of it enforceable against it in accordance with its terms;
(iv) it has all requisite corporate power and authority to enter into and
perform all of its obligations under this Agreement;
(v) with respect to all matters on which the holders of SCL Class B Shares
are entitled to vote at the SCL Shareholder Meeting (as defined in Section 8
below), it covenants and agrees to vote all of the SCL Class B Shares held by it
in favor of the Spinoff Proposals (as defined in Section 8 below); and
(vi) it covenants and agrees that, until the fifth anniversary of the date
of this Agreement, it will not sell, transfer, pledge, hypothecate, encumber,
assign, tender, or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale, transfer, pledge,
hypothecation, encumbrance, assignment, voting, tender or other disposition of
the SCL Class B Shares owned by it or any interest therein, except as
contemplated pursuant to this Agreement; and
(vii) SC House covenants that in the event that it has not previously
exercised the SC House Purchase Option, it will do so in full on the fifth
anniversary of the date of this Agreement.
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The representations, warranties and covenants contained herein shall be
made as of the date hereof and as of the closings of each of the Contender
Purchase Options.
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SCL. SCL
represents, warrants and covenants that:
(i) this Agreement has been duly executed and delivered by it and
constitutes a legal, valid and binding obligation of it enforceable against it
in accordance with its terms;
(ii) the execution, delivery and performance by it of this Agreement will
not conflict with, require any consent, waiver or approval under, or result in a
breach of default under, any of the terms of any contract, commitment or other
obligation (written or oral) to which it is bound;
(iii) the execution, delivery and performance of this Agreement by it and
all transactions contemplated hereby have been duly authorized by all necessary
corporate action on its part, and this Agreement constitutes the legal, valid
and binding contract of it enforceable against it in accordance with its terms;
(iv) it has all requisite corporate power and authority to enter into and
perform all of its obligations under this Agreement; and
(v) it covenants and agrees that, until the fifth anniversary of the date
of this Agreement, it will not sell, transfer, pledge, hypothecate, encumber,
assign, tender, or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale, transfer, pledge,
hypothecation, encumbrance, assignment, voting, tender or other disposition of
18,044,478 of the XXXX Class B Shares (as adjusted by the IPO Adjustment) owned
by it or any interest therein, except for conversions of such shares into XXXX
Class A Shares, and except as contemplated pursuant to this Agreement.
The representations, warranties and covenants contained herein shall be
made as of the date hereof and as of the closing of the SC House Purchase
Option.
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF CONTENDER.
Contender represents, warrants and covenants that:
(i) this Agreement has been duly executed and delivered by it and
constitutes a legal, valid and binding obligation of it enforceable against it
in accordance with its terms;
(ii) the execution, delivery and performance by it of this Agreement will
not conflict with, require any consent, waiver or approval under, or result in a
breach of default under, any of the
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terms of any contract, commitment or other obligation (written or oral) to which
it is bound;
(iii) the execution, delivery and performance of this Agreement by it and
all transactions contemplated hereby have been duly authorized by all necessary
corporate action on its part, and this Agreement constitutes the legal, valid
and binding contract of it enforceable against it in accordance with its terms;
and
(iv) it has all requisite corporate power and authority to enter into and
perform all of its obligations under this Agreement.
SECTION 8. SCL SHAREHOLDER MEETING. SCL intends to convene a meeting of
the holders of SCL Class A Shares and SCL Class B Shares (the "SCL SHAREHOLDER
MEETING") to seek shareholder approval of certain corporate actions in
connection with the Spinoff (the "SPINOFF Proposals"), including, without
limitation:
(i) the approval of alterations of the rights of holders of SCL Class A
Shares and SCL Class B Shares set forth in Schedules 1 and 2 to SCL's Bye-Laws
(relating to the rights and restrictions attaching to SCL Class B Shares and SCL
Class A Shares, respectively) to permit (xx) the distribution in the Spinoff of
XXXX Class A Shares exclusively to holders of SCL Class A Shares and (yy) the
distribution in the Spinoff of XXXX Class B Shares exclusively to holders of SCL
Class B Shares; and
(ii) the approval of this Agreement.
SECTION 9. COVENANTS OF SCL AND XXXX. Each of SCL and XXXX covenants and
agrees to cause Contender and each XXXX SOS to take all necessary corporate
actions to consummate the transactions contemplated by this Agreement.
VI. MISCELLANEOUS
SECTION 10. AMENDMENTS. This Agreement may be amended if, and to the
extent that, any such amendment is authorized pursuant to a resolution adopted
by the Board of Directors of each of the parties hereto, and no amendment or
waiver of any provision of this Agreement or consent to departure therefrom
shall be effective unless in writing and signed by each party hereto, in the
case of an amendment, or by the party which is the beneficiary of any such
provision, in the case of a waiver or a consent to depart therefrom.
SECTION 11. NOTICES. Any notices or other communications hereunder shall
be in writing and shall be deemed to have been duly given (and shall be deemed
to have been duly received if so given) if personally delivered or sent by
telecopier or by registered or
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certified mail, postage paid, addressed to the respective parties as follows:
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IF TO SCL: IF TO XXXX:
Sea Containers Ltd. Orient-Express Hotels Ltd.
00 Xxxxx Xxxxxx 41 Cedar Avenue
Xxxxxxxx, Bermuda HMEX Hamilton, Bermuda HMEX
Attention: Secretary Attention: Secretary
Telecopier No.: 000-000-0000 Telecopier No.: 000-000-0000
IF TO SC HOLDINGS: IF TO SC HOUSE:
Sea Containers Holdings Ltd. Sea Containers House Ltd. 00
Xxxxx Xxxxxx 41 Cedar Avenue
Xxxxxxxx, Bermuda HMEX Hamilton, Bermuda HMEX
Attention: Secretary Attention: Secretary
Telecopier No.: 000-000-0000 Telecopier No.: 000-000-0000
IF TO MARCON: IF TO SC ASIA:
Marine Container Insurance Sea Containers Asia Ltd.
Co. Ltd. x/x Xxx Xxxxxxxxxx Xxxxx
00 Xxxxx Xxxxxx Ltd.
Hamilton, Bermuda HMEX 00 Xxxxx Xxxxxx
Attention: Secretary Hamilton, Bermuda HMEX
Telecopier No.: 000-000-0000 Attention: Secretary
Telecopier No.: 000-000-0000
IF TO CONTENDER:
Contender 2 Ltd.
00 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx XXXX
Xxxxxxxxx: Secretary
Telecopier No.: 000-000-0000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
SECTION 12. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal substantive laws of the Islands
of Bermuda.
SECTION 13. SUBMISSION TO JURISDICTION. If any party shall have the right
to seek recourse to a court with respect to any dispute arising out of or
related to this Agreement or the transactions contained in or contemplated by
this Agreement, whether in tort or contract or at law or in equity, then any
action or proceeding in respect of any such dispute shall be brought exclusively
in the Courts of the Islands of Bermuda.
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SECTION 14. SPECIFIC PERFORMANCE. Each of the parties acknowledges and
agrees that the other parties would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the parties
agrees that the other parties shall be entitled to an injunction or injunctions
to prevent breaches, or threatened breaches, of the provisions of this Agreement
and to enforce specifically this Agreement.
SECTION 15. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, personal
representatives, executors, heirs and permitted assigns.
SECTION 16. HEADINGS. The Section headings herein are for
convenience of reference only and shall not affect the construction hereof.
SECTION 17. ENTIRE AGREEMENT. This Agreement, including any annexes,
appendices, exhibits, and schedules hereto, constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior or contemporaneous negotiations, covenants, agreements,
representations, warranties, undertakings, and understandings, written or oral,
and of course of conduct and dealing between the parties hereto, with respect to
the subject matter hereof.
SECTION 18. SEVERABILITY. If any term or other provision hereof is
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable in whole or in part by reason of any applicable law or public
policy, and such determination becomes final and nonappealable, such term or
other provision shall remain in full force and effect to the fullest extent
permitted by law, and all other terms and provisions hereof shall remain in full
force and effect in their entirety.
SECTION 19. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which
together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, each party has duly executed this Agreement as of the
date and year first above written.
SEA CONTAINERS LTD. SEA CONTAINERS ASIA LTD.
By: /s/ X. X. X'Xxxxxxxx By: /s/ X. X. X'Xxxxxxxx
---------------------------- ---------------------------
Name: Xxxxxx X. X'Xxxxxxxx Name: Xxxxxx X. X'Xxxxxxxx
Title: Senior Vice President - Title: Director
Finance and Chief
Financial Officer
SEA CONTAINERS HOLDINGS LTD. CONTENDER 2 LTD.
By: /s/ X. X. X'Xxxxxxxx By: /s/ X. X. Xxxxxxx
---------------------------- ---------------------------
Name: Xxxxxx X. X'Xxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Director Title: Director
SEA CONTAINERS HOUSE LTD. ORIENT-EXPRESS HOTELS LTD.
By: /s/ X. X. X'Xxxxxxxx By: /s/ X. Xxxxxxx
---------------------------- ---------------------------
Name: Xxxxxx X. X'Xxxxxxxx Name: Xxxxx Xxxxxxx
Title: Director Title: Vice President and
Treasurer
MARINE CONTAINER INSURANCE CO. LTD.
By: /s/ X. X. X'Xxxxxxxx
----------------------------
Name: Xxxxxx X. X'Xxxxxxxx
Title: Director
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