VOTING AGREEMENT
Exhibit
10.1
This
VOTING AGREEMENT (this “Agreement”)
is
entered into as of April 30, 2006, by and among Xxxxxxx International Limited,
an international business company incorporated under the laws of the
Commonwealth of The Bahamas (the “Company”),
K-Two
Holdco Limited, an international business company incorporated under the laws
of
the Commonwealth of The Bahamas (“Parent”)
and
each of the undersigned shareholders of the Company listed on the signature
pages hereto (each, a “Shareholder”
and
collectively, the “Shareholders”).
WHEREAS,
concurrently with the execution and delivery of this Agreement, the Company
has
entered into an Amended and Restated Agreement and Plan of Merger (as may be
amended from time to time, the “Merger
Agreement”)
with
Parent, and K-Two Subco Limited, an international business company incorporated
under the laws of the Commonwealth of The Bahamas (“Merger
Sub”),
dated
as of the date hereof, pursuant to which, upon the terms and subject to the
conditions set forth therein, Merger Sub will merge with and into the Company,
with the Company as the surviving corporation;
WHEREAS,
each Shareholder beneficially owns the number of Ordinary Shares set forth
opposite such Shareholder’s name on Schedule I hereto (excluding Company
Restricted Shares) (collectively, together with any Ordinary Shares subsequently
acquired, the “Subject
Shares”);
WHEREAS,
as a condition to the willingness of the Company to enter into the Merger
Agreement, and as an inducement and in consideration therefor, the Company
has
required that the Shareholders agree, and the Shareholders have agreed, to
enter
into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual premises, covenants
and agreements contained in this Agreement, the parties intending to be legally
bound, hereby agree as follows:
ARTICLE
I
VOTING
Section
1.1 Agreement
to Vote.
(a)
Each
Shareholder hereby agrees that, during the Voting Period, such Shareholder
shall
vote or execute consents with respect to (or cause to be voted or consents
to be
executed with respect to) all Subject Shares beneficially owned by such
Shareholder as of the applicable record date in favor of the approval of the
Merger Agreement, the Merger and any other transaction contemplated by the
Merger Agreement at any meeting (or any adjournment or postponement thereof)
of
the Company’s shareholders, or in any other circumstances upon which a vote,
consent or other approval (including a written consent) with respect to the
Merger Agreement, the Merger or any other transaction contemplated by the Merger
Agreement is sought.
(b) Each
Shareholder hereby agrees that, during the Voting Period, such Shareholder
shall
vote or execute consents with respect to (or cause to be voted or consents
to be
executed with respect to) all Subject Shares beneficially owned by such
Shareholder as of the applicable record date against each of the matters set
forth in clauses (i), (ii), (iii) or (iv) below at any meeting (or any
adjournment or
postponement
thereof) of the Company’s shareholders, or in any other circumstances upon which
a vote, consent or other approval (including a written consent) with respect
to
any of the following matters is sought:
| (i) |
any
action, proposal, transaction or agreement that would reasonably
be
expected to result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of
the
Company contained in the Merger Agreement or of the Shareholder contained
in this Agreement;
|
| (ii) |
any
action, proposal, transaction or agreement involving the Company
or any of
its Subsidiaries that would reasonably be expected to prevent, impede,
frustrate, interfere with, delay, postpone or adversely affect the
Merger
and the other transactions contemplated by the Merger Agreement;
|
| (iii) |
any
Company Acquisition Proposal (whether made prior to, as of or subsequent
to the termination of the Merger Agreement);
and
|
| (iv) |
any
material change in the present capitalization of the Company or any
amendment to the Company’s articles of association or memorandum of
association.
|
(c) Any
vote
required to be cast or consent required to be executed pursuant to this Section
1.1 shall be cast or executed in accordance with the applicable procedures
relating thereto so as to ensure that it is duly counted for purposes of
determining that a quorum is present (if applicable) and for purposes of
recording the results of that vote or consent. Each Shareholder agrees not
to
enter into any agreement or commitment with any Person the effect of which
would
be inconsistent with or violative of the provisions and agreements contained
in
this Article
I.
Section
1.2 Grant
of Irrevocable Proxy.
Each
Shareholder hereby appoints Parent and any designee of Parent, and each of
them
individually, as such Shareholder’s proxy and attorney-in-fact, with full power
of substitution and resubstitution, to vote or act by written consent during
the
Voting Period with respect the Subject Shares in accordance with
Section 1.1. This proxy is given to secure the performance of the duties of
each Shareholder under this Agreement. Each Shareholder shall, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as the Company
may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
Section
1.3 Nature
of Irrevocable Proxy.
The
proxy and power of attorney granted pursuant to Section 1.2 by each
Shareholder shall be irrevocable during the term of this Agreement, shall be
deemed to be coupled with an interest sufficient in law to support an
irrevocable proxy and shall revoke any and all prior proxies granted by such
Shareholder. The power of attorney granted by each Shareholder herein is a
durable power of attorney and shall survive the dissolution, bankruptcy, death
or incapacity of such Shareholder.
The
proxy and power of attorney granted hereunder shall terminate upon the
termination of this Agreement.
Section
1.4 Transfers.
Each
Shareholder agrees that, during the Voting Period, such Shareholder shall not
except as contemplated by this Section 1.4, sell, transfer, pledge, assign
or
otherwise dispose of (including by gift) (collectively, “Transfer”),
or
enter into any Contract, option or other arrangement (including, without
limitation, any profit sharing arrangement) with respect to the Transfer of,
any
Subject Shares to any Person other than pursuant to the Merger. Notwithstanding
the foregoing, the Shareholders may Transfer any Subject Shares to any of their
respective Affiliates (“Affiliate
Transferee”),
provided
that the
effectiveness of any such Transfers shall be conditioned on the transferee
agreeing in writing to be bound by the provisions of this Agreement in a form
reasonably satisfactory to the Company and Parent.
Section
1.5 Voting
Arrangements. Except
for this Agreement, no Shareholder shall enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, with respect to any of such
Shareholder’s Subject Shares and shall not commit or agree to take any of the
foregoing actions.
Section
1.6 Representations.
Each
Shareholder represents and warrants to the Company that the Subject Shares
set
forth opposite such Shareholder’s name on Schedule I hereto represent all
Ordinary Shares owned beneficially (determined for the purposes of this
paragraph as set forth in Rule 13d-3 promulgated under the Exchange Act) or
of record by such Shareholder or by a trust of which such Shareholder is a
trustee. Each Shareholder has the sole right to vote the Subject Shares set
forth opposite such Shareholder’s name on Schedule I hereto, and none of such
Subject Shares is subject to any voting trust or other agreement, arrangement
or
restriction with respect to the voting of such Subject Shares, except as
contemplated by this Agreement. No trust of which a Shareholder is a trustee
requires the consent of any beneficiary to the execution and delivery of this
Agreement or to the consummation of the transactions contemplated
hereby.
Section
1.7 Definitions.
For
purposes of this Agreement, “Voting
Period”
means
the period from and including the date of this Agreement through and including
the earliest to occur of (i) the obtaining of the Requisite Shareholder Vote,
(ii) the termination of the Merger Agreement in accordance with its terms other
than pursuant to Sections 9.1(b)(iii) (but only under circumstances in which
the
Termination Fee may become subsequently payable pursuant to Section 9.2(c)
thereof), 9.1(d)(ii) or 9.1(d)(iii) thereof, and (iii) if the Merger Agreement
is terminated pursuant to Sections 9.1(b)(iii) (under circumstances in which
the
Termination Fee may become subsequently payable pursuant to Section 9.2(c)
thereof), 9.1(d)(ii) or 9.1(d)(iii) thereof, the date that is six months after
the date of such termination; provided
that, if
the Merger Agreement is terminated pursuant to any of the provisions thereof
described in this clause (iii) and an agreement with respect to a Company
Acquisition Proposal is entered into during the Voting Period and has not been
consummated by the time the Voting Period would otherwise expire, the Voting
Period shall be extended until the earlier of the consummation of the
transaction contemplated by that agreement (as it may be amended, modified
or
supplemented from time to time) or the termination of that agreement.
ARTICLE
II
MISCELLANEOUS
Section
2.1 Defined
Terms.
Capitalized terms that are used but not otherwise defined herein shall have
the
respective meanings ascribed to them in the Merger Agreement.
Section
2.2 Appraisal
Rights.
To the
extent permitted by applicable law, each Shareholder hereby waives any rights
of
appraisal or rights to dissent from the Merger that it may have under applicable
law.
Section
2.3 Notices.
All
notices, requests and other communications to any part hereunder shall be in
writing (including facsimile or similar writing) and shall be
given:
if
to the
Company, to:
Xxxxxxx
International Limited
000
Xxxxx
Xxxxxx -- Xxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxxx
Fax:
(000) 000-0000
if
to
Parent, to:
K-Two
Holdco Limited
Coral
Towers
Paradise
Island
Attention:
Xxxxxxx X. Xxxxxx
Fax:
x0
000 000 0000
if
to a
Shareholder, to the address set forth for such Shareholder on Schedule I
hereto.
Section
2.4 Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware.
Section
2.5 Jurisdiction.
Each
party irrevocably submits to the jurisdiction of (a) any Delaware State court,
and (b) any Federal court of the United States sitting in the State of Delaware,
solely for the purposes of any suit, action or other proceeding between any
of
the parties hereto arising out of this Agreement or any transaction contemplated
hereby. Each party agrees to commence any suit, action or proceeding relating
hereto either in any Federal court of the United States sitting in the State
of
Delaware or, if such suit, action or other proceeding may not be brought in
such
court for reasons of subject matter jurisdiction, in any Delaware State court.
Each party irrevocably and unconditionally waives any objection to the laying
of
venue of any suit, action or proceeding between any of the parties hereto
arising out of this Agreement or any transaction contemplated hereby in (i)
any
Delaware State court, and (ii) any Federal court of the United States sitting
in
the State of Delaware, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such suit, action
or
proceeding brought in any such court has been brought in an inconvenient forum.
Each party further irrevocably
consents
to the service of process out of any of the aforementioned courts in any such
suit, action or other proceeding by the mailing of copies thereof by registered
mail to such party at its address set forth in this Agreement, such service
of
process to be effective upon acknowledgment of receipt of such registered mail;
provided that nothing in this Section 2.5 shall affect the right of any party
to
serve legal process in any other manner permitted by law. The consent to
jurisdiction set forth in this Section 2.5 shall not constitute a general
consent to service of process in the State of Delaware and shall have no effect
for any purpose except as provided in this Section 2.5. The parties agree that
a
final judgment in any such suit, action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. EACH
PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH
PARTY
MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN
THIS SECTION 2.5.
Section
2.7 Assignment.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns, provided that
no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other parties
hereto.
Section
2.8 Counterparts.
This
Agreement may be executed in separate counterparts, each of which shall be
deemed an original and both of which shall constitute one and the same document.
This Agreement may be executed by facsimile signatures and in any number of
counterparts, each of which shall be an original, with the same effect as if
the
signatures thereto and hereto were upon the same instrument.
Section
2.9 Entire
Agreement. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and may be amended only in a writing
executed by the parties to be bound thereby.
Section
2.10 Amendment.This
Agreement may not be amended except by an instrument in writing signed by the
parties hereto (in the case of the Company, acting through the Special
Committee, if such committee still exists, or otherwise by resolution of a
majority of its Disinterested Directors).
Section
2.11 Termination
of Agreement. This
Agreement may be terminated by the mutual written consent of the parties hereto
(in the case of the Company, acting through the Special Committee, if such
committee still exists, or otherwise by resolution of a majority of its
Disinterested Directors). This Agreement shall terminate automatically without
any further action on the part of the parties hereto upon the expiration of
the
Voting Period.
Section
2.12 Enforcement.
Each
Shareholder agrees that irreparable damage would occur, damages would be
difficult to determine and would be an insufficient remedy and no other adequate
remedy would exist at law or in equity, in each case in the event that any
of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached (or any party hereto threatens such
a
breach). Accordingly,
it is agreed that in the event of a breach or threatened breach of this
Agreement by any Shareholder, the
Company and Parent (and their respective successors and assigns) shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement, in
addition to any other remedy to which such party is entitled at law or in
equity. Each Shareholder irrevocably waives any defenses based on adequacy
of
any other remedy, whether at law or in equity, that might be asserted as a
bar
to the remedy of specific performance of any of the terms or provisions hereof
or injunctive relief in any action brought therefor by the Company or
Parent.
Section
2.13 Effect
on Other Agreements. The
parties hereto acknowledge and agree that the Voting Agreement, dated as of
March 20, 2006, among the Company, World Leisure Group Limited, Xxxxxxx Xxxxxxx
and Xxxxxx X. Xxxxxxx and the provisions relating to the voting of Ordinary
Shares in the equity rollover letter, dated as of March 20, 2006, from Istithmar
PJSC to Parent, shall terminate concurrently with the execution and delivery
of
this Agreement by each of the parties hereto and shall thereafter be of no
further force or effect and no Person shall have any rights or obligations
with
respect thereto.
[The
remainder of this page is blank]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first written above.
|
XXXXXXX
INTERNATIONAL LIMITED
|
| By: /s/ Xxxx Siegel_________________ |
|
Name:
Xxxx Xxxxxx
|
|
Title:
Director
|
|
K-TWO
HOLDCO LIMITED
|
| By: /s/ Xxxxxx X. Kerzner________ __ |
|
Name:
Xxxxxx X. Xxxxxxx
|
|
Title:
President
|
|
WORLD
LEISURE GROUP LIMITED
|
| By: /s/ Solomon Kerzner_______ ____ |
|
Name:
Xxxxxxx Xxxxxxx
|
| Title: Chairman |
|
XXXXXXX
XXXXXXX
|
|
/s/ Solomon Kerzner_________
|
| XXXXXX X. XXXXXXX |
| /s/ Xxxxxx X. Xxxxxxx |
|
ISTITHMAR
PJSC
|
| By: /s/ Xxxxx Jodlowski___________ |
|
Name:
Xxxxx Xxxxxxxxx
|
|
Title:
Chief Financial Officer
|
Schedule
I
Ownership
of Ordinary Shares
|
Name
and Address of Shareholder
|
Number
of Shares
|
|
World
Leisure Group Limited
x/x
Xxxxxxx Xxxxxxxxxxxxx Xxxxxxx
Xxxxx
Xxxxxx
Xxxxxxxx
Xxxxxx
Attention:
Xxxxxxx X. Xxxxxx
Fax:
+1 000 000 0000
|
0,795,794(1)
|
|
Xxxxxxx
Xxxxxxx
x/x
Xxxxxxx Xxxxxxxxxxxxx Xxxxxxx
Xxxxx
Xxxxxx
Xxxxxxxx
Xxxxxx
Attention:
Xxxxxxx X. Xxxxxx
Fax:
+1 000 000 0000
|
0,795,794(2)
|
|
Xxxxxx
X. Xxxxxxx
c/x
Xxxxxxx International Limited
Coral
Towers
Paradise
Island
Attention:
Xxxxxxx X. Xxxxxx
Fax:
+1 000 000 0000
|
0(3)
|
|
Istithmar
PJSC
Emirates
Towers, Xxxxx 0
Xxxxxx
Xxxxx Xxxx - XX Xxx 00000
Xxxxx,
Xxxxxx Xxxx Xxxxxxxx
Attention:
Xxxxx Xxxxxxx, Chief Investment Officer
Fax:
+971 4 3903818
|
4,500,000
|
_____________
|
(1)
|
Excludes
116,225 Ordinary Shares over which World Leisure Group Limited has
the
right to vote through certain proxy arrangements with Sun International
Limited (formerly known as Kersaf Investments
Limited).
|
|
(2)
|
Includes
3,795,794 Ordinary Shares beneficially owned by World Leisure Group
Limited.
|
|
(3)
|
Excludes
500,000 Company Restricted Shares beneficially owned by Xxxxxx X.
Xxxxxxx.
|
