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 HOLDINGS LTD., a Bermuda company and a wholly-owned subsidiary of SCL
("SC Holdings"), 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"), and SEA
CONTAINERS ASIA LTD., a Hong Kong company and a wholly-owned subsidiary of SCL
("SC Asia"), 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 Holdings 1,076,000
SC House 6,064,000
MarCon 2,907,000
SC Asia 2,853,000
2. XXXX'x authorized share capital includes (i) Class A Shares (the
"XXXX Class A Shares"), of which there are [16.7 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 [14.7 million] such Shares
outstanding, all of which are owned by SCL.
3. It is expected (i) that SCL and XXXX will offer and sell an
aggregate of approximately [7 million] XXXX Class A Shares to the public in an
underwritten public offering (the "XXXX IPO") and (ii) that sometime thereafter,
SCL (xx) will distribute all of the XXXX Class A Shares owned by SCL to the
holders of SCL's Class A Shares, so that each holder of SCL Class A Shares will
receive one XXXX Class A Share for each SCL Class A share held, and (yy) will
distribute all of the XXXX Class B Shares owned by SCL to the holders of SCL
Class B Shares (including to SC Holdings and the XXXX XXXx), so that each holder
of SCL Class B Shares will receive one XXXX Class B Share for each SCL Class B
Share held (the "Spinoff").
4. Prior to the XXXX IPO, SCL intends to transfer to XXXX all of its
ownership of SC House, MarCon and SC Asia (collectively, the "XXXX XXXx"), and
prior to such transfer SCL, SC Holdings 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) SCL and SC Holdings wish (i) to give SC House the option to
purchase up to 12,900,000 XXXX Class B Shares owned by SCL and SC Holdings and
(ii) to agree to vote up to 12,900,000 XXXX Class B Shares owned by SCL and SC
Holdings in accordance with the instructions of SC House; and
(b) the XXXX XXXx wish (i) to give SC Holdings the option to purchase
up to 11,824,000 SCL Class B Shares owned by the XXXX XXXx and (ii) to agree to
vote up to 11,824,000 SCL Class B Shares owned by the XXXX XXXx in accordance
with the instructions of SC Holdings.
5. SC Holdings and the XXXX XXXx have determined that if the Spinoff
occurs, (x) SC Holdings will sell the 1,076,000 XXXX Class B Shares which it
will receive in the Spinoff to SC House at a price of $__________ per share, and
(y) SC House, MarCon and SC Asia will sell the 11,824,000 SCL Class B Shares
which they own to SC Holdings at a price of $__________ per share (collectively,
the "Spinoff Share Sales").
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 and the XXXX Class B Shares held, and to be held, by SC
Holdings and the XXXX XXXx, (ii) the transfer by SCL to XXXX of its ownership of
SC House, MarCon and SC Asia, and (iii) the Spinoff Share Sale.
* * * * *
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:
SECTION 1. SC HOLDINGS PURCHASE OPTIONS. Subject to the limitations set
forth in paragraph (e) below, at any time (i) after the earlier of (x) the
Spinoff or (y) the second anniversary of the date of this Agreement and (ii) on
or prior to the fifth anniversary of the date of this Agreement, SC Holdings
shall have the right and options (the "SC Holdings Purchase Options") to
purchase up to an aggregate maximum of 11,824,000 SCL Class B Shares (subject to
adjustment as set forth in paragraph (f) below) from SC House, MarCon and SC
Asia, all on the terms and conditions set forth below:
(a) SC HOUSE. SC Holdings 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 Holdings 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 purchase price of $____ per SCL Class B Share.
(c) SC ASIA. SC Holdings 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 purchase price of $____, per SCL Class B Share.
(d) SC HOLDINGS PURCHASE OPTION CLOSINGS. If SC Holdings wishes to
exercise its option to purchase SCL Class B Shares pursuant to this Section 2,
it shall provide SC House, MarCon or SC Asia, 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 1 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.
(e) EFFECT OF SPINOFF SHARE SALES. Notwithstanding anything to the
contrary herein contained, the SC Holdings Purchase Options set forth in
paragraphs (a), (b) and (c) above shall terminate with respect to any SCL Class
B Shares which are transferred in the Spinoff Share Sales agreed to in Section 6
of this Agreement; provided, however, that such purchase options shall remain in
effect with respect to any SCL Class B Shares held by either SC House, MarCon or
SC Asia, and which are not transferred pursuant to this SC Holdings Purchase
Option.
(f) 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 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 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 Holdings shall
have right to
purchase from SC House, MarCon or SC Asia, 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.
SECTION 2. SC HOUSE PURCHASE OPTIONS. Subject to the limitations set
forth in paragraph (d) below, at any time (i) after the earlier of (x) the
Spinoff or (y) the second anniversary of the date of this Agreement and (ii) on
or prior to the fifth anniversary of the date of this Agreement, SC House shall
have the right and options (the "SC House Purchase Options") to purchase from
SCL and SC Holdings, for cash, up to an aggregate maximum of 12,900,000 XXXX
Class B Shares (subject to adjustment as set forth in paragraph (e) below) from
SCL and SC Holdings, all on the terms and conditions set forth below:
(a) SC HOLDINGS. SC House shall have the right to purchase from SC
Holdings, for cash, any or all of the XXXX Class B Shares held by SC Holdings,
up to a maximum of 1,076,000 XXXX Class B Shares (subject to adjustment as set
forth in paragraph (e) below), at a purchase price of $__________ per XXXX Class
B. Share.
(b) SCL. In the event that the Spinoff has not occurred on or prior to
the second anniversary of the date of this Agreement, SC House shall have the
right to purchase from SCL, for cash, any or all of the XXXX Class B Shares held
by SCL, up to a maximum of 12,900,000 XXXX Class B Shares (subject to adjustment
as set forth in paragraph (e)below) at a price of $__________ per XXXX Class B.
Share.
(c) SC HOUSE PURCHASE OPTION CLOSINGS. If SC House wishes to exercise
its option to purchase XXXX Class B Shares pursuant to this Section 3 it shall
provide SCL and SC Holdings, as the case may ,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 2 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 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 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.
(d) EFFECT OF THE SPINOFF AND SPINOFF SHARE SALE. Notwithstanding
anything to the contrary herein contained, (i) insofar as it has been granted by
SCL, the SC House Purchase Options set forth in this Section 2 shall terminate
to the extent of the number of XXXX Class B Shares that SCL distributes in the
Spinoff; provided, however, that such purchase option shall remain in effect
with respect to XXXX Class B Shares numbering less than 12,900,000 held by SCL,
and which are not distributed in the Spinoff; and (ii) insofar as it has been
granted by SC Holdings, the SC House Purchase Options set forth in this Section
2 shall terminate with respect
to any XXXX Class B Shares which are transferred by SC Holdings in the Spinoff
Share Sale referred to in Section 6 of this Agreement; provided, however, that
such purchase options shall remain in effect with respect to any XXXX Class B
Shares held by SC Holdings, and which are not transferred pursuant such Spinoff
Share Sale.
(e) STOCK DIVIDENDS AND SPLITS, RECLASSIFICATIONS AND MERGERS. In the
event, there shall be a subdivision or combination of the outstanding 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 shares of XXXX Class B Shares, or
in case of 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 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 SC Holdings and SCL, as the case may
be, the same kind and amount of shares and other securities received by the
holders of XXXX Class B shares upon any such reclassification, or merger, and
the exercise rice of purchase option shall be appropriately adjusted.
SECTION 3. VOTING. Until the earlier of (a) the consummation of the
Spinoff Share Sale or (b) the fifth anniversary of the date of this Agreement:
(i) With respect to all matters on which holders of XXXX Class B Shares
are entitled to vote, SC Holdings agrees to vote all XXXX Class B Shares which
it will receive in the Spinoff in accordance with the written instructions of SC
House, and SCL agrees to vote 12,900,000 XXXX Class B Shares which it holds in
accordance with the written instructions of SC House; and
(ii) with respect to all matters on which holders of SCL Class B Shares
are entitled to vote, SC House, MarCon and SC Asia agree to vote all SCL Class B
Shares which they hold in accordance with the written instructions of the SC
Holdings.
SECTION 4. WAIVER OF DIVIDENDS AND DISTRIBUTIONS. Until the earlier of
(a) the consummation of the Spinoff Share Sale or (b) the fifth anniversary of
the date of this Agreement:
(i) Except with respect to any stock dividend or stock split,
reclassification or other change which would result in an adjustment pursuant to
Section 6(f) or Section 2(e) hereof, SC Holdings agrees to waive all dividends
and distributions which it would otherwise be entitled to receive as the record
owner of XXXX Class B Shares which it will receive in the Spinoff, and SCL
agrees to waive all dividends and distributions with respect to 12,900,000 XXXX
Class B Shares to which it would otherwise be entitled to receive as a record
owner of such shares; and
(ii) Except with respect to any stock dividend or stock split,
reclassification or other change which would result in an adjustment pursuant to
Section 6(f) or Section 1(f) hereof, SC House, MarCon and SC Asia 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.
SECTION 5. TRANSFER OF XXXX XXXx. 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 and SC
Asia.
(a) CLOSING. 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 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.
SECTION 6. SPINOFF SHARE SALES. Provided that the Spinoff occurs prior
to the second anniversary of this Agreement, SC Holdings, SC House, MarCon and
SC Asia agree that, simultaneously with the distribution of XXXX Class B Shares
in the Spinoff, they will effect the Spinoff Share Sales, all on the terms and
conditions set forth below:
(a) SC HOLDINGS SPINOFF SHARES SALE. At the Closing (as defined in
paragraph (e)below), SC Holdings will sell to SC House 1,076,000 XXXX Class B
Shares (subject to adjustment a set forth in paragraph (f) below) for a price of
$ per share.
(b) SC HOUSE SPINOFF SHARE SALE. At the Closing, SC House will sell to
SC Holdings 6,064,000 SCL Class B Shares (subject to adjustment as set forth in
paragraph (f) below) in exchange at a price of $__________ per share.
(c) MARCON SPINOFF SHARE SALE. At the Closings , MarCon will sell
2,907,000 SCL Class B Shares (subject to adjustment as set forth in paragraph
(f) below) at a price of $__________ per share.
(d) SC ASIA SPINOFF SHARE SALE. At the Closing, SC Asia will sell
2,853,000 SCL Class B Shares (subject to adjustment as set forth in paragraph
(f) below) at a price of $__________ per share.
(e) CLOSING. Simultaneously with the distribution of the XXXX Class B
Shares in the Spinoff, SC House, MarCon, SC Holdings and SC Asia each agree to
consummate the Spinoff
Share Sales provided for in this Section 6 at a closing (the "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, SC Holdings, SC House, MarCon and SC Asia shall
deliver certificates representing the number of SCL Class B Shares or XXXX Class
B Shares (as the case may be) to be transferred to each of them pursuant to
paragraphs (a), (b), (c) and (d) hereof, 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.
(f) 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 or XXXX Class B Shares, as the case may be, 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 or XXXX Class B
Shares, as the case may be, to be sold in the Spinoff Share Sale shall be
proportionately adjusted. In the event of a reclassification or change in the
outstanding SCL Class B Shares or XXXX Class B Shares, as the case may be, or in
case of any consolidation or merger to which SCL or XXXX, as the case may be, is
a party (except a merger which does not result in any reclassification or change
in the outstanding SCL Class B Shares or 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 SCL or XXXX, as the case may be, for shares or securities of
another entity or corporation, then and in each such event the holder or holders
of the SCL Class B Shares or XXXX Class B Shares, subject to the
reclassification or merger, shall have right to exchange the SCL Class B Shares
or XXXX Class B shares, as the case may be, into the same kind and amount of
shares and other securities received by the holders of the affected shares upon
any such reclassification or merger, and the price per share at which such
shares are to be sold shall be appropriately adjusted.
SECTION 7. REPRESENTATIONS, WARRANTS AND COVENANTS OF SC HOLDINGS. 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 the requisite corporate power and authority to enter into
and execute 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 10 below), it covenants and agrees to vote all of the SCL Class B Shares
held by it (or the voting of which it may otherwise have the power to direct) in
favor of the Spinoff Proposals (as defined in Section 10 below);
(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 XXXX Class B Shares owned by it or any interest therein,
except as contemplated pursuant to this Agreement; and
(vii) it covenants that in the event that SC Holdings has not
previously exercised the SC Holdings Purchase Options, it will do so on the
fifth anniversary as 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 Closing of the Spinoff Share Sale and
the closings of each of SC Holdings Purchase Options and SC House Purchase
Options.
SECTION 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF EACH XXXX SOS.
Each of 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;
(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 (or the voting of which it may otherwise have the power to direct) 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 on the fifth anniversary
as 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 Closing of the Spinoff Share Sale
Exchange and the closings of each of the SC Holdings Purchase Options and SC
House Purchase Options.
SECTION 9. 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 12,900,000 of the XXXX Class B Shares owned by it or any interest
therein, 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 Spinoff Share Sale and
the closings of each of the SC Holdings Purchase Options and SC House Purchase
Options.
SECTION 10. SCL SHAREHOLDER MEETING. SCL intends to convene a meeting
of its Class A Shareholders and Class B Shareholders (the "SCL Shareholder
Meeting") to seek shareholder approval of certain corporate actions to be taken
in connection with the Spinoff (the "Spinoff Proposals"), including, without
limitation:
(i) the approval of variations 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 the Spinoff Share Sale contemplated by this
Agreement.
SECTION 11. COVENANTS OF SCL AND XXXX. (i) SCL covenants and agrees to
cause SC Holdings and (ii) XXXX covenants and agrees to cause each of SC House,
MarCon and SC Asia to take all necessary corporate actions to consummate the
transactions contemplated by this Agreement.
SECTION 12. AMENDMENTS. 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 13. 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 41 Cedar Avenue
Xxxxxxxx, Bermuda HMEX Hamilton, Bermuda HMEX
Attention: Secretary Attention: Secretary
Telecopier No.: 000-000-0000 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 14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal substantive laws of the Island of
Bermuda.
SECTION 15. 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 16. 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 17. 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 18. HEADINGS. The Section headings herein are for convenience
of reference only and shall not affect the construction hereof.
SECTION 19. 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 20. 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 tot he fullest extent
permitted by law, and all other terms and provisions hereof shall remain in full
force and effect in their entirety.
SECTION 21. 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:
ORIENT EXPRESS HOTELS LTD.
By: __________________________
Name:
Title:
