Exhibit 4
CORPORATE GOVERNANCE AGREEMENT, dated as of August 10, 2004
(this "Agreement"), by and between Xxxxxxx International Limited, a company
incorporated under the laws of The Bahamas (the "Company"), and Istithmar PJSC,
a company organized under the laws of Dubai ("Istithmar").
R E C I T A L S
A. Contemporaneously with the execution and delivery of this
Agreement, Istithmar has purchased an aggregate of 4,500,000 ordinary shares of
the Company, par value $0.001 per share, from the Company and certain selling
shareholders.
B. In connection with the sale of shares to Istithmar, the
parties have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Certain Definitions. For the purposes of this
Agreement, the following terms shall have the following meanings:
"Affiliate" means, with respect to any Person, any other
Person controlling, controlled by or under direct or indirect common control
with such Person. For the purposes of this Agreement, "control," when used with
respect to any specified Person, shall mean, (a) as determined with respect to
each Person pursuant to the laws of the jurisdiction where such Person is
organized, the actual or deemed direction of the management and policies of such
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise, or (b) the power to direct the management and policies
of such Person whether through ownership of voting securities, by contract or
otherwise if there exists any agreement, arrangement or understanding, whether
oral or written, between such specified Person and the Person who has such power
(together with any Affiliates thereof, the "Power Person") with regard to the
Power Person taking an action that the specified Person is prohibited from
taking under this Agreement or the specified Person not taking an action it is
required to take under this Agreement, or matters related to either of the
foregoing; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing. For purposes of this Agreement, the Company shall
be deemed not to be an Affiliate of Istithmar or WLG.
"Beneficial Ownership" shall have the meaning set forth in
Rule 13d-3 under the Exchange Act as in effect on the date of this Agreement;
and the terms "Beneficially Owned" and "Beneficially Owns" shall have meanings
correlative to the foregoing.
"Board" or "Board of Directors" means the Board of Directors
of the Company, except where the context requires otherwise.
"Caledonia" means Caledonia Investments PLC, a company
incorporated under the laws of England.
"Director" means a member of the Board of Directors.
"Equity Security" means (i) Shares, (ii) securities of the
Company convertible into or exchangeable for Shares and (iii) any options,
warrants or other rights issued by the Company to acquire Shares or securities
of the Company convertible into or exchangeable for Shares.
"Exchange Act" means the Securities Exchange Act of 1934 and
the rules and regulations promulgated thereunder, as amended.
"Independent Director" means a Director of the Company who
would be considered an "independent director" under (a) NYSE Rule 303A(2) as
such rule may be amended, supplemented or replaced from time to time (whether by
final rule or otherwise and without giving effect to any permitted delays for
compliance or exceptions for foreign issuers) or (b) if the Company is not
listed on the NYSE, any comparable rule or regulation of the primary securities
exchange or quotation system on which the Shares are listed or quoted (whether
by final rule or otherwise and without giving effect to any permitted delays for
compliance or exceptions for foreign issuers).
"Istithmar Group" means Istithmar, Nakheel Co. LLC, Nakheel
Holdings 1 LLC, Nakheel Holdings 2 LLC, Nakheel Holdings 3 LLC and, as of any
date, any of their respective Subsidiaries and any Person engaged in investment
or commercial activities which is under the authority and control of the current
Executive Chairman of Istithmar comparable to the authority and control he
exercises over Istithmar as of the date hereof.
"Istithmar Standstill Expiration Date" means the August 10,
2009.
"Istithmar's Percentage Interest" means, as of any date of
determination, the percentage of Voting Power (determined on the basis of the
number of outstanding shares of Voting Stock, as set forth in the most recent
SEC filing of the Company prior to such date that contained such information)
that is Beneficially Owned by the Istithmar Group as of such date. Voting Stock
acquired by any member of the Istithmar Group in breach of this Agreement will
be excluded from any calculation of Istithmar's Percentage Interest.
"Letter Agreement" means the Letter Agreement, dated as of
August 10, 2004, among the Company, WLG, Caledonia, Cement Merchants SA and
Istithmar.
"NYSE" means The New York Stock Exchange, Inc.
"Person" means any individual, firm, corporation, partnership,
company, limited liability company, trust, joint venture, association,
governmental entity, unincorporated organization or other entity.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of August 10, 2004, between the Company and Istithmar.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933 and the
rules and regulations promulgated thereunder, as amended.
"Shares" means (a) the ordinary shares, par value $0.001 per
share, of the Company (including any dividends in kind thereon) or (b) any other
class of stock resulting from any reclassification, exchange, substitution,
combination, stock split or reverse stock split, including in connection with
any merger or otherwise, of such ordinary shares.
"Subsidiary" of any person means another person, (i) an amount
of the voting securities, other voting ownership or voting partnership interests
of which is sufficient to elect at least a majority of its Board of Directors or
other governing body or (ii) 50% or more of the equity interests of which, is
owned directly or indirectly by such first person or by another subsidiary of
such first person.
"13D Group" means any group of Persons formed for the purpose
of acquiring, holding, voting or disposing of Voting Stock that would be
required under Section 13(d) of the Exchange Act, and the rules and regulations
thereunder (as in effect on, and based on legal interpretations thereof existing
on, the date hereof), to file a statement on Schedule 13D with the SEC as a
"person" within the meaning of Section 13(d)(3) of the Exchange Act if such
group Beneficially Owned Voting Stock representing more than 5% of any class of
Voting Stock then outstanding (other than a group consisting of all of
Caledonia, Cement Merchants SA, Istithmar and WLG).
"Voting Power" means the ability to vote or to control,
directly or indirectly, by proxy or otherwise, the vote of any Voting Stock at
the time such determination is made; provided, however, that a Person will not
be deemed to have Voting Power as a result of an agreement, arrangement or
understanding to vote such Voting Stock if such agreement, arrangement or
understanding (a) arises solely from a revocable proxy or consent given in
response to a public proxy or consent solicitation made pursuant to the
applicable rules and regulations under the Exchange Act and (b) is not also then
reportable by such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report).
"WLG" means World Leisure Group Limited, a company
incorporated under the laws of the British Virgin Islands.
"WLG Group" means, as of any date, WLG and all of its
Affiliates as of such time, including Xxxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxx.
ARTICLE II
LIMITATIONS ON PURCHASES OF EQUITY SECURITIES
AND OTHER ACTIONS
SECTION 2.1. Limitation on Purchases of Equity Securities. At
any time prior to the Istithmar Standstill Expiration Date, Istithmar shall not,
and shall cause each member of the Istithmar Group not to, directly or
indirectly, acquire, agree to acquire or make a proposal to acquire Beneficial
Ownership of any Equity Securities; provided, however, that Istithmar (or a
member of the Istithmar Group) may acquire, agree to acquire or make a proposal
to acquire Beneficial Ownership of additional Equity Securities if, after giving
effect to such acquisition, the number of Shares Beneficially Owned by the
Istithmar Group would not exceed the number of Shares then Beneficially Owned by
the WLG Group (excluding any Shares received or acquired by any member of the
WLG Group pursuant to the exercise of any stock options, or pursuant to any
employment agreement or arrangement, employee stock purchase plan, deferred
compensation plan, severance plan, fringe benefit plan or other executive
compensation plan) based on the information contained in the most recent filing
by WLG or the Company with the SEC regarding WLG's ownership of Equity
Securities and other information provided by WLG or the Company to Istithmar.
For purposes of this Section 2.1, the Company represents and warrants that the
aggregate number of Shares Beneficially Owned, as of the date of this Agreement,
by the WLG Group (excluding any Shares received or acquired pursuant to the
exercise of any stock options, or pursuant to any employment agreement or
arrangement, employee stock purchase plan, deferred compensation plan, severance
plan, fringe benefit plan or other executive compensation plan) is approximately
4,450,000 Shares.
SECTION 2.2. Additional Limitations. At any time prior to the
Istithmar Standstill Expiration Date, Istithmar shall not, and shall cause each
member of the Istithmar Group not to:
(a) "solicit" any proxies or become a "participant" in any
"solicitation" of proxies or in any "election contest" (as such terms are
defined in Regulation 14A of the Exchange Act) with respect to any Equity
Securities having the right to vote generally in any election of Directors
("Voting Stock") or seek to influence any person or 13D Group with respect to
the voting of any Voting Stock;
(b) propose or attempt to acquire or affect control of the
Company or directly or indirectly participate in, or encourage the formation of,
any 13D Group which owns or seeks to acquire Beneficial Ownership of Voting
Stock or to acquire or affect control of the Company;
(c) except through the presence of its designee on the Board
of Directors, otherwise act, alone or in concert with others, to seek to control
or to influence in any manner the management, Board, policies or affairs of the
Company or propose or seek to effect any merger, consolidation, tender or
exchange offer, sale or purchase of all or a substantial portion of the assets
or other business combination or similar transaction or any dissolution,
liquidation, restructuring, recapitalization or similar transaction, in each
case involving the Company; or
(d) publicly request, propose or otherwise seek any amendment
or waiver of the provisions of Article II or otherwise request or propose any
such amendment or waiver in a manner which could reasonably be expected to
require the Company to make a public disclosure regarding such request or
proposal.
SECTION 2.3. Fiduciary Duties; Voting. Nothing in this
Agreement shall be construed to prohibit any Director designated for nomination
by Istithmar pursuant to Section 3.2(a) or (c) from taking any action solely in
his or her capacity as a member of the Board or from exercising his or her
fiduciary duties as a member of the Board or to prohibit any member of the
Istithmar Group from voting any Voting Stock in the manner it sees fit in its
sole discretion except as expressly provided for in Section 3.3 of this
Agreement.
SECTION 2.4. Termination of Certain Limitations. If, at any
time prior to the Istithmar Relinquishment Event (as defined in Section 3.2(e)),
notwithstanding the fact that Istithmar has exercised its rights to designate a
Director in accordance with Section 3.2(a) or a replacement Director in
accordance with Section 3.2(c), as the case may be, and complied in all material
respects and in good faith with the requirements herein regarding the
designation of and voting for directors, including pursuant to Section 3.3, no
individual designated by Istithmar in accordance with Section 3.2(a) or (c) is
elected or appointed, as the case may be, to serve as a Director (or as a
replacement for a Director), then the restrictions applicable to Istithmar and
the Istithmar Group in this Article II and in Section 4.1 shall terminate
subject to notice from Istithmar and the expiration of a five business day cure
period during which the Board may appoint an individual designated by Istithmar
in accordance with Section 3.2(c).
ARTICLE III
BOARD OF DIRECTORS; VOTING
SECTION 3.1. New Directors. Upon execution and delivery of
this Agreement, the Company shall increase the size of the Board of Directors by
two members and Xxxxxx X. Xxxxxxx, the Company's Chief Executive Officer, and an
individual designated by Istithmar who satisfies the requirements of Section
3.2(d) shall be appointed to fill the new seats.
SECTION 3.2. Nomination and Election of Directors.
(a) In connection with each meeting of the shareholders of the
Company in which Directors shall be elected, Istithmar shall have the right to
designate for nomination one nominee who satisfies the requirements of Section
3.2(d) for Director, and the Company shall cause such Person designated for
election in accordance with this Section 3.2(a) to be included in the Board's
slate of nominees for such meeting.
(b) Subject to applicable law, Istithmar shall be entitled to
remove any director designated by it. The Company shall take all reasonable
efforts consistent with applicable law to effectuate such removal.
(c) Istithmar shall have the right to designate any
replacement for a Director designated for nomination in accordance with Section
3.2(a) by Istithmar upon the death, resignation, retirement, disqualification or
removal from office of such Director; provided that such replacement shall
satisfy Section 3.2(d). The Board of Directors shall appoint each person so
designated.
(d) Istithmar hereby agrees that any individual that it
designates as a nominee for Director or replacement Director shall satisfy all
administrative, regulatory or other governmental requirements applicable to the
Company and the other members of the Board of Directors.
(e) Notwithstanding any provisions of this Agreement to the
contrary, if, at any time, Istithmar's Percentage Interest falls below 5% (the
"Istithmar Relinquishment Event"), then Istithmar shall no longer have the right
pursuant to Section 3.2(a) or 3.2(c) to designate a nominee for Director and
shall immediately take all reasonable efforts consistent with applicable law to
cause its then current designee to resign as a member of the Board and this
Article III shall terminate.
SECTION 3.3. Solicitation and Voting of Shares. (a) The
Company shall use its reasonable best efforts to solicit from its shareholders
eligible to vote for the election of Directors proxies in favor of the nominee
designated by Istithmar in accordance with Section 3.2(a).
(b) In any election of Directors or any meeting of the
shareholders of the Company called expressly for the removal of Directors, each
member of the Istithmar Group shall attend in person or by proxy for purposes of
establishing a quorum and shall vote all its Voting Stock (i) in favor of any
nominee for Director designated by Istithmar in accordance with this Article III
and (ii) otherwise against the removal of any Director designated by Istithmar
in accordance with this Article III.
(c) Istithmar agrees that it will take all actions as a
shareholder of the Company, or as is otherwise within its control, as necessary
to effect the provisions of this Agreement.
SECTION 3.4. Fiduciary Duties; Replacement Nominees. (a)
Nothing in this Agreement shall be deemed to require the Board of Directors or
any committee or member thereof to take any action or refrain from taking any
action, or result in a breach of any provision of this Article III, if the Board
of Directors, such committee or Director determines in good faith that taking
such action or refraining from taking such action, as the case may be, would
cause a violation of fiduciary duties under applicable law.
(b) In the event that the Board of Directors (or any committee
thereof) relies on Section 3.4(a) or Section 3.2(d) to exclude a person
designated by Istithmar pursuant to Section 3.2(a) or 3.2(c) from the Board's
slate of nominees (or otherwise take adverse action with respect to any such
designee, including failing to recommend the election of such designee), the
Board of Directors (or applicable committee) shall afford Istithmar a reasonable
opportunity to select a replacement designee for inclusion, subject to Section
3.2(e), on the Board's slate of nominees or the Board, as the case may be.
ARTICLE IV
TRANSFER OF SHARES
SECTION 4.1. Limitation on Transfer of Shares. (a) Except as
permitted by Section 4.1(b), at any time prior to the Istithmar Standstill
Expiration Date, the members of the Istithmar Group shall not, without the
consent of a majority of the Independent Directors, sell, transfer or otherwise
dispose of Shares, directly or indirectly, to any Person or 13D Group, if, after
giving effect to such sale, transfer or other disposition such Person or 13D
Group would, to Istithmar's knowledge after due inquiry, Beneficially Own, or
have the right to acquire Beneficial Ownership of, more than 4.9% of the
Company's Voting Stock.
(b) Notwithstanding any of the foregoing, Istithmar may at any
time:
(i) transfer any or all of its Shares to a member of the
Istithmar Group which agrees in writing to be bound by the terms and
provisions of this Agreement to the same extent as the transferor party
(a "Permitted Transferee") and remains a member of the Istithmar Group
at all times following such transfer; provided that Istithmar shall not
(A) permit such Permitted Transferee to cease to be a member of the
Istithmar Group unless Istithmar has first reacquired all such
transferred Shares from the Permitted Transferee and (B) in any manner
be released from any of its obligations hereunder as a result of any
transfer to a Permitted Transferee.
(ii) sell, transfer or otherwise dispose of any of its Shares
in an Underwritten Public Offering (as defined in the Registration
Rights Agreement) pursuant to any registration effected under the
Registration Rights Agreement, subject to the conditions and
limitations contained therein;
(iii) make a sale of Shares otherwise prohibited by Section
4.1(a) if such sale is affected as (A) a "brokers' transaction" (as
such term is defined for purposes of Rule 144 under the Securities Act)
or (B) other open-market sale (including a block trade) by a broker in
which no more than 500,000 Shares are sold to any single Person or 13D
Group; or
(iv) sell, transfer or otherwise dispose of any of its Shares
pursuant to any bona fide tender or exchange offer by any Person (other
than by a member of the Istithmar Group, a member of any Group (as
defined in the Registration Rights and Governance Agreement, dated as
of July 3, 2001, among the Company, Sun International Investments
Limited, WLG, Kersaf Investments Limited, Caledonia, Mangalitsa
Limited, CMS, Rosegrove Limited, Royale Resorts Holdings Limited and
Sun International Inc.) or by any 13D Group that includes any such
member) for all of the Equity Securities that has not been solicited,
directly or indirectly, by any member of the Istithmar Group or any
such Group.
(c) Purported transfers of Shares that are not in compliance
with this Article IV shall be void. For the avoidance of doubt, the sale of
Shares to the Company shall not be prohibited by this Article IV.
ARTICLE V
BUSINESS OPPORTUNITIES
SECTION 5.1. Business Opportunities. (a) If any member of the
Istithmar Group wishes to pursue, directly or indirectly, an investment in any
other Venue-based Entertainment Business (as defined below) outside the Middle
East (as defined below), Istithmar shall first present the opportunity to the
Company, including a description of all material terms known to such member of
the Istithmar Group and all out-of-pocket costs and expenses incurred by such
member of the Istithmar Group. An "investment" for the purposes of this Section
5.1 shall not include an investment (a) in less than 5% (or of up to $30 million
if greater than 5%) of the outstanding stock of a publicly-listed Venue-based
Entertainment Business or a company owning such business or (b) in an amount
less than $30 million in the outstanding equity capital of a privately owned
Venue-based Entertainment Business or a company owning such a business.
"Venue-based Entertainment Business" means any enterprise, entity or project
that owns and/or operates luxury hotels, theme parks, gaming or other resort
activities at one or more fixed geographic sites. "Middle East" means the
geographic area which includes the countries of United Arab Emirates, Bahrain,
Qatar, Egypt, Oman, Yemen, Lebanon, Syria, Iran, Iraq, Jordan and Saudi Arabia.
(b) Within 60 days of the presentation of an opportunity
pursuant to Section 5.1(a), the Company shall notify Istithmar whether it
desires to assume the opportunity. To "assume the opportunity" means undertaking
the investigation, investment, development, acquisition and/or management of the
relevant investment.
(c) If the Company determines to assume the opportunity, the
Company will reimburse such member of the Istithmar Group for all of its
out-of-pocket costs and expenses related to the identification or evaluation of
the potential business opportunity.
(d) If the Company declines to assume the opportunity or fails
to provide notice within 60 days of the presentation of an opportunity pursuant
to Section 5.1(a), such member of the Istithmar Group shall be entitled to
pursue the proposed opportunity so long as its ultimate involvement in such
opportunity shall be on terms in the aggregate no more favorable than those
presented to the Company pursuant to Section 5.1(a).
(e) Notwithstanding any provision of this Agreement to the
contrary, this Article V shall terminate in its entirety immediately upon (i)
the occurrence of the Istithmar Relinquishment Event or (ii) if at any time (1)
the percentage of Voting Power (determined on the basis of the number of
outstanding shares of Voting Stock, as set forth in the most recent SEC filing
of the Company prior to such date that contained such information) that is
Beneficially Owned by the WLG Group falls below 5% or (2) neither Xxxxxxx
Xxxxxxx nor Xxxxxx X. Xxxxxxx serves as an executive officer of the Company.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Adjustments. References to numbers of Shares and
to sums of money contained herein shall be adjusted to account for any
reclassification, exchange, substitution, combination, stock split or reverse
stock split of the Shares, including in connection with any merger or otherwise.
SECTION 6.2. Notices. All notices, requests and other
communications to any party hereunder shall be in writing and shall be deemed
given (i) when delivered, if delivered in person, (ii) when sent by facsimile
(provided the fax is promptly confirmed by telephone confirmation thereof),
(iii) when sent by email (provided the email is promptly confirmed by telephone
confirmation thereof) and (iv) two business days following sending by overnight
delivery by an internationally recognized overnight courier, in each case, to
the respective parties at the following addresses (or at such other address for
a party as shall be specified in a notice given in accordance with this Section
6.2):
if to the Company, to:
Xxxxxxx International Limited
P.O. Box N-4777
Nassau, The Bahamas
Attention: General Counsel
Facsimile: (000) 000-0000
Email: Xxxxxxx.Xxxxxx@xxxxxxx.xxx
with a copy to:
Cravath, Swaine & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Email: XXxxxxxx@xxxxxxx.xxx
if to Istithmar, to:
Istithmar PJSC
Emirates Towers, Xxxxx 00
Xxxxxx Xxxxx Xxxx
PO Box 17000
Dubai, United Arab Emirates
Attention: Chief Executive Officer
Facsimile: x000 0 000 0000
Email: xxxx@xxxxxxxxx.xx
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Email: XXxxxxxxxx@xxxx.xxx
SECTION 6.3. Legend. (a) Istithmar agrees to the imprinting,
until the Istithmar Standstill Expiration Date, of a legend on certificates
representing all of its Shares, to the following effect:
THE SALE, TRANSFER OR OTHER DISPOSITION (EACH A "TRANSFER") OF
ANY OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
RESTRICTED BY THE TERMS OF THE CORPORATE GOVERNANCE AGREEMENT,
DATED AUGUST 10, 2004 (THE "CORPORATE GOVERNANCE AGREEMENT"),
AMONG THE COMPANY AND THE SHAREHOLDER NAMED THEREIN, A COPY OF
WHICH MAY BE INSPECTED AT THE COMPANY'S PRINCIPAL OFFICE. THE
COMPANY WILL NOT REGISTER THE TRANSFER OF SUCH SECURITIES ON
THE BOOKS OF THE COMPANY UNLESS AND UNTIL THE TRANSFER HAS
BEEN MADE IN COMPLIANCE WITH THE TERMS OF THE CORPORATE
GOVERNANCE AGREEMENT.
(b) The Company shall remove the legend described in clause (a) from
certificates representing Shares owned by Istithmar or a Permitted Transferee
(i) if the Shares represented thereby are sold, transferred or otherwise
disposed of in compliance with this Agreement (other than to a Permitted
Transferee) and (ii) immediately following the Istithmar Standstill Expiration
Date.
SECTION 6.4. Amendments; No Waivers. (a) No provision of this
Agreement may be amended or waived unless such amendment or waiver is in writing
and signed by each of the Company and Istithmar; provided that no such amendment
or waiver shall be effective against the Company without the prior approval of a
majority of the Company's Independent Directors.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 6.5. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors. No party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement.
SECTION 6.6. Governing Law. This Agreement shall be construed
in accordance with and governed by the laws of the State of New York applicable
to agreements made and to be performed entirely within such State and, to the
extent applicable, the federal securities laws of the United States.
SECTION 6.7. Change in Law. In the event any law, rule or
regulation comes into force or effect (including by amendment) which conflicts
with the terms and conditions of this Agreement, the parties shall negotiate in
good faith to revise the Agreement to achieve the parties' intention set forth
herein.
SECTION 6.8. Jurisdiction.
(a) Each party inter se irrevocably submits to the exclusive
jurisdiction of (a) the Supreme Court of the State of New York, New York County,
and (b) the United States District Court for the Southern District of New York,
solely for the purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby. Each party agrees to
commence any such action, suit or proceeding either in the United States
District Court for the Southern District of New York or if such suit, action or
other proceeding may not be brought in such court for jurisdictional reasons, in
the Supreme Court of the State of New York, New York County. Each of the parties
hereto further irrevocably consents, and shall cause each of its Affiliates to
irrevocably consent, to the service of process in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, return receipt requested, to such party at its address as provided for
notices hereunder. Each party irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby and thereby in (i) the
Supreme Court of the State of New York, New York County, or (ii) the United
States District Court for the Southern District of New York, and hereby and
thereby further irrevocably and unconditionally waives and agrees not to plead
or claim in any such court that any such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum.
(b) Istithmar confirms that (i) it is not a party to any
agreement with the United States of America relating in any way to the immunity
of Istithmar from jurisdiction of courts, suit, execution upon a judgment,
attachment prior to judgment or in aid of execution upon a judgment or any other
legal process and (ii) it is, under the law of Dubai, subject to civil and
commercial law with respect to its obligations under this Agreement and has
agreed not to assert the defense of immunity, on the grounds of sovereignty or
otherwise, in respect of any suit, action or proceeding arising out of or
relating to claims under this or the consummation of the transactions
contemplated hereby or thereby.
SECTION 6.9. Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signature thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by the other party hereto.
SECTION 6.10. Specific Performance. The parties hereto (and
any Person who agrees to be bound hereby pursuant to the terms hereof)
acknowledge and agree, and shall cause each of its Affiliates to agree, that
their respective remedies at law for a breach or threatened breach of any of the
provisions of this Agreement would be inadequate and, in recognition of that
fact, agree that, in the event of a breach or threatened breach by any party (or
any of such Persons) of the provisions of this Agreement, in addition to any
remedies at law, they shall, respectively, without posting any bond, be entitled
to obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy which may then be available.
SECTION 6.11. Interpretation; Certain Definitions. When a
reference is made in this Agreement to a Section or Subsection, such reference
shall be to a Section or Subsection of, this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation". The words "hereof", "herein", "hereto", "hereby" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. The
term "or" is not exclusive. The word "extent" in the phrase "to the extent"
shall mean the degree to which a subject or other thing extends, and such phrase
shall not mean simply "if". The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms. Any
agreement or instrument defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement or instrument as from
time to time amended, modified or supplemented. References to a person are also
to its permitted successors and assigns.
SECTION 6.12. No Third Party Beneficiaries. Nothing contained
in this Agreement, express or implied, is intended to or shall confer upon
anyone other than the parties hereto (and their permitted successors and
assigns) any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
SECTION 6.13. Severability. If any provision of this Agreement
or the application of any provision hereof to any party hereto or set of
circumstances is held invalid, the remainder of this Agreement and the
application of such provision to the other parties hereto or sets of
circumstances shall not be affected, unless the provisions held invalid shall
substantially impair the benefits of the remaining portions of this Agreement.
SECTION 6.14. Confidentiality. (a) Istithmar agrees to
maintain, and shall cause each member of the Istithmar Group and its and their
respective directors, officers, employees and other representatives to maintain,
the confidentiality of all material non-public information obtained from the
Company or any of its Subsidiaries or their respective directors, officers,
employees or agents, and not to use such information for any purpose other (i)
than the evaluation and protection of the investment by Istithmar in the
Company, (ii) the exercise by Istithmar of its rights under this Agreement or
any of the other agreements entered into among Istithmar, the Company and/or
certain of its shareholders in connection with Istithmar's investment in the
Company and (iii) the exercise by the directors designated by Istithmar of their
fiduciary duties as members of the Board.
(b) Notwithstanding the foregoing, the confidentiality
obligations of Section 6.14(a) will not apply to information obtained other than
in violation of this Agreement:
(i) which Istithmar or any member of the Istithmar Group or
any of its or their respective directors, officers, employees or
other representatives is required to disclose by judicial or
administrative process, or by other requirements of applicable
law or regulation or any governmental authority; provided,
however, that, where and to the extent practicable, the
disclosing party (A) gives the Company reasonable notice of any
such requirement and, to the extent protective measures
consistent with such requirement are available, the opportunity
to seek appropriate protective measures and (B) cooperates at the
Company's sole cost and expense with the Company in attempting to
obtain such protective measures;
(ii) which becomes available to the public other than as a
result of a breach of Section 6.14; or
(iii) which has been provided to Istithmar or any member of
the Istithmar Group or its or their respective directors,
officers, employees or other representatives, by a third party
who obtained such information other than from any such Person or
other than as a result of a breach of Section 6.14.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
XXXXXXX INTERNATIONAL LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
ISTITHMAR PJSC
By: /s/ Sultan A. Bin Sulayem
-------------------------------------
Name: Sultan A. Bin Sulayem
Title: Chairman
