Exhibit 2.2
SHARE OWNING SUBSIDIARIES
RESTRUCTURING AGREEMENT
SHARE OWNING SUBSIDIARIES RESTRUCTURING AGREEMENT, dated as of July ,
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"), THE MARINE CONTAINERS 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"), [___________________________________], a Bermuda company and a
wholly-owned subsidiary of SCL ("[SC SUB]"), 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 Shares (the "SCL
CLASS A SHARES"), of which there are [16.7 million] such Shares issued and
outstanding and (ii) Class B Shares (the "SCL CLASS B SHARES"), of which there
are [14.7 million] 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 Shares (the
"XXXX CLASS A SHARES"), of which there are [23.4 million] 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 [20.5 million] 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").
4. 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
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"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 Sea Containers, which 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, SC Sub, 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 [18.1 million] 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 [SC Sub] 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 [SC Sub].
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 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 [SC Sub], except as
provided in Section 6(v).
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 [SC Sub] 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,
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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. [SC SUB] PURCHASE OPTIONS
SECTION 3. [SC SUB] PURCHASE OPTIONS. At any time between (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, [SC Sub]
shall have the right and 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. [SC Sub] 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 $_____ per SCL Class B Share.
(b) MARCON. [SC Sub] 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 $____ per SCL Class B Share.
(c) SC ASIA. [SC Sub] 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 $____, per SCL Class B Share.
(d) SC HOLDINGS. [SC Sub] 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 $_____ per SCL Class B Share.
[SC Sub] covenants and agrees that is will exercise the [SC Sub]
Purchase Options in full either (i) immediately following the Spinoff or (ii) if
the Spinoff does not occur, no later than the day immediately preceding the
fifth anniversary of the date of this Agreement.
(e) [SC SUB] PURCHASE OPTIONS CLOSINGS. If [SC Sub] 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
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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 [SC Sub] shall have 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 FROM SCL. (a) If the Spinoff does
not occur, then at any time between (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 [18.1 million] XXXX Class B
Shares (subject to the IPO Adjustment and/or as set forth in paragraph (c)
below) from SCL, at a price of $__ per XXXX Class B Share.
(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
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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
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 Holdings, SC House,
MarCon and SC Asia.
(b) SCL agrees to consummate the transfer of the XXXX XXXx provided for
in this Section 6 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 Holdings, SC House, MarCon and SC Asia, in each case 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 Holdings, SC House, MarCon and SC Asia 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;
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(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, it covenants and
agrees to vote all of the SCL Class B Shares held by it in favor of the Spinoff
Proposals; 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 Options, it will do so in full on the fifth
anniversary of the date of this Agreement.
The representations, warranties and covenants contained herein shall be
made as of the date hereof and as of the closings of each of the purchase
options granted to [SC Sub] in Section 3 hereof.
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
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[12,900,000] of the XXXX Class B Shares 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
Options
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF [SC SUB]. [SC]
Sub] 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; 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 [SC Sub] 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
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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 certified mail, postage paid, addressed to the
respective parties as follows:
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:
The Marine Containers Insurance Ltd. Sea Containers Asia Ltd.
00 Xxxxx Xxxxxx c/o Sea Containers House Ltd.
Hamilton, Bermuda HMEX 41 Cedar Avenue
Hamilton, Bermuda HMEX
Attention: Secretary Attention: Secretary
Telecopier No.: 000-000-0000 Telecopier No.: 000-000-0000
IF TO [SC SUB]:
[SC Sub]
00 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx XXXX
Xxxxxxxxx: Secretary
Telecopier No.: 000-000-0000
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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 Island 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.
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.
By: __________________________
Name:
Title:
SEA CONTAINERS HOLDINGS LTD.
By: __________________________
Name:
Title:
SEA CONTAINERS HOUSE LTD.
By: __________________________
Name:
Title:
THE MARINE CONTAINERS INSURANCE CO. LTD.
By: __________________________
Name:
Title:
SEA CONTAINERS ASIA LTD.
By: __________________________
Name:
Title:
[SC SUB]
By: __________________________
Name:
Title:
ORIENT EXPRESS HOTELS LTD.
By: __________________________
Name:
Title:
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