EXHIBIT 2
STOCK PURCHASE AGREEMENT (this
"Agreement"), dated as of July 15, 2004, by and
between Cement Merchants SA, a company incorporated
under the laws of Panama (the "Seller"), and
Istithmar PJSC, a company organized under the laws of
Dubai (the "Purchaser").
A. The Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, 200,000 ordinary shares (the
"Secondary Shares") of Xxxxxxx International Limited, a company incorporated
under the laws of The Bahamas (the "Company"), par value $0.001 per share, for
an aggregate purchase price of $9,500,000 in cash ($47.50 per share).
B. Contemporaneously with the execution and delivery of this
Agreement, the Purchaser has entered into a stock purchase agreement (the
"Company Purchase Agreement") with the Company, providing for the purchase of
3,000,000 ordinary shares (the "Company Shares") of the Company, par value
$0.001 per share, at an aggregate purchase price of $153,750,000 in cash ($51.25
per share).
C. At the Closing (as defined in Section 2 herein), the
Company, the Purchaser, the Seller and certain other shareholders of the Company
will execute and deliver a letter agreement (the "Letter Agreement"), in the
form attached hereto as Exhibit A.
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:
1. Agreement to Sell and Purchase the Secondary Shares; Registration Rights. (a)
At the Closing, the Seller will, subject to the terms and conditions of this
Agreement, sell to the Purchaser, and the Purchaser will, subject to the terms
and conditions of this Agreement, purchase from the Seller, the Secondary Shares
for an aggregate purchase price of $9,500,000 in cash (the "Purchase Price")
($47.50 per share).
(b) Effective upon the Closing, (i) the Seller will assign its
registration rights under the 2001 Agreement (as defined below) with respect to
the Secondary Shares (other than rights pursuant to Section 5.3.2(b) (second) of
the 2001 Agreement) in accordance with the terms of the 2001 Agreement, and (ii)
in connection therewith, the Purchaser will be bound with respect to the
Secondary Shares by Article V of the 2001 Agreement as it applies to the "CMS
Group" (as such term is defined in the 2001 Agreement). The "2001 Agreement"
means the Registration Rights and Governance Agreement, dated as of July 3,
2001, among the Company, Sun International Investments Limited, World Leisure
Group Limited, Kersaf Investments Limited, Caledonia Investments PLC, Mangalitsa
Limited, Cement Merchants SA, Rosegrove Limited, Royale Resorts Holdings Limited
and Sun International Inc.
2. Delivery of the Secondary Shares at the Closing.
2.1 The closing of the sale to, and purchase by, the Purchaser
of the Secondary Shares (the "Closing") shall take place at the offices of
Cravath, Swaine & Xxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at
10:00 a.m. on the later of July 21, 2004, or the second business day following
the satisfaction (or, to the extent permitted, waiver by the parties entitled to
the benefits thereof) of all the conditions set forth in this Agreement (the
"Closing Date"). At the Closing, the Seller shall deliver to the Purchaser one
or more certificates evidencing the Secondary Shares (or such instruments of
transfer as are reasonably satisfactory to the Purchaser to transfer to and vest
in the Purchaser record and beneficial ownership of the Secondary Shares)
against delivery to the Seller of the Purchase Price by wire transfer of
immediately available funds to an account that the Seller will designate in
writing to the Purchaser at least two business days prior to the Closing Date.
2.2 The Seller's obligation to complete the purchase and sale
of the Secondary Shares to the Purchaser at the Closing shall be subject to the
following conditions, any one or more of which may be waived by the Seller: (a)
receipt by the Seller of immediately available funds in the full amount of the
Purchase Price; (b) the accuracy of each of the representations and warranties
of the Purchaser herein, in each case as of the date of this Agreement and as of
the Closing Date as if restated on and as of the Closing Date; (c) the
fulfillment by the Purchaser of each of its undertakings herein required to be
fulfilled prior to the Closing; (d) receipt by the Seller of a certificate
signed by an authorized officer of the Purchaser confirming the matters
described in the preceding clauses (b) and (c); and (e) no Law (as hereinafter
defined) or other legal restraint or prohibition preventing the consummation of
transactions contemplated by this Agreement or the Letter Agreement shall be in
effect.
2.3 The Purchaser's obligation to pay for the Secondary Shares
shall be subject to the following conditions, any one or more of which may be
waived by the Purchaser: (a) receipt by the Purchaser of the stock
certificate(s), each duly executed for transfer or together with a stock power,
evidencing the Secondary Shares (or such instruments of transfer as are
reasonably satisfactory to the Purchaser to transfer to and vest in the
Purchaser record and beneficial ownership of the Secondary Shares); (b) the
accuracy of each of the representations and warranties of the Seller herein, in
each case as of the date of this Agreement and as of the Closing Date as if
restated on and as of the Closing Date; (c) the fulfillment by the Seller of
each of its undertakings herein required to be fulfilled prior to the Closing;
(d) receipt by the Purchaser of a certificate signed by an authorized officer of
the Seller confirming the matters described in the preceding clauses (b) and
(c); (e) the concurrent consummation of the sale of the Company Shares in
accordance with the terms of the Company Purchase Agreement; (f) the execution
and delivery of the Letter Agreement by the Seller; and (g) no Law or other
legal restraint or prohibition preventing the consummation of the transactions
contemplated by this Agreement and the Letter Agreement shall be in effect;
provided, however, that the condition in foregoing clause (e) may not be waived
without the Company's prior written consent.
3. Representations, Warranties and Covenants of the Seller. In
consideration for the Purchaser's agreement to enter into this Agreement and the
Letter Agreement and to purchase the Secondary Shares from the Seller, the
Seller hereby represents and warrants to, and covenants with, the Purchaser as
follows:
3.1 Organization and Qualification. The Seller is a company
duly organized and validly existing under the laws of the jurisdiction in which
it is incorporated and is qualified to do business as a foreign corporation in
each jurisdiction in which qualification is required, except where failures to
so qualify individually or in the aggregate would not be reasonably likely to
prevent or materially delay fulfillment of the closing conditions set forth in
Section 2.3 or the Seller's ability to perform its obligations under this
Agreement.
3.2 Validity. The execution, delivery and performance by the
Seller of this Agreement and the Letter Agreement and the consummation of the
transactions contemplated hereby and the transactions contemplated to be
consummated at or promptly following the Closing under the Letter Agreement have
been duly authorized by all necessary action on the part of the Seller. This
Agreement has been duly executed and delivered by the Seller and, assuming the
valid execution and delivery thereof by the Purchaser constitutes, and the
Letter Agreement, when duly executed and delivered by the Seller and, assuming
valid execution and delivery thereof by the other parties thereto will
constitute, a legal, valid and binding obligation of the Seller enforceable
against it in accordance with its terms.
3.3 Private Offering. None of the Seller, its subsidiaries or
their representatives has sold or offered any security of the Company to any
person under circumstances that would cause the sale of the Secondary Shares, as
contemplated by this Agreement, to be subject to the registration requirements
of the Securities Act of 1933, as amended (the "Securities Act"). None of the
Seller, its subsidiaries or their representatives will offer the Secondary
Shares or any part thereof or any similar securities for sale to, or solicit any
offer to acquire any of the same from, anyone so as to make the sale of the
Secondary Shares subject to the registration requirements of Section 5 of the
Securities Act. Assuming the representations of Purchaser contained in Section
4.3 and Section 4.4 are true and correct, the sale and delivery of the Secondary
Shares hereunder are exempt from the registration and prospectus delivery
requirements of the Securities Act.
3.4 The Secondary Shares. The Seller is the record and
beneficial owner of the Secondary Shares, free and clear of all liens,
encumbrances, equities and claims and at the Closing will duly indorse the
Secondary Shares in blank, and upon sale and delivery of, and payment for, the
Secondary Shares as provided for herein, the Purchaser will own the Secondary
Shares free and clear of all liens, encumbrances, equities and claims, other
than those arising from acts of the Purchaser or its affiliates. Other than this
Agreement, the Ancillary Agreements (as defined in the Company Purchase
Agreement) and Article V of the 2001 Agreement, the Secondary Shares are not
subject to any voting trust agreement or other contract that will apply to the
Secondary Shares following the transactions contemplated hereby, including any
such contract restricting or otherwise relating to the voting, dividend rights
or disposition of the Secondary Shares. Other than the payment of the New York
State stock transfer tax, no stock transfer taxes are due as a result of the
sale of the Secondary Shares. The Secondary Shares constitute "Registrable
Securities" as such term is defined in the 2001 Agreement.
4. Representations, Warranties and Covenants of the Purchaser.
The Purchaser represents and warrants to, and covenants with, the Seller as
follows:
4.1 Organization. The Purchaser is a company duly organized
and validly existing under the laws of Dubai and is qualified to do business as
a foreign corporation in each jurisdiction in which qualification is required,
except where failures to so qualify individually or in the aggregate, are not
reasonably likely to prevent or materially delay fulfillment of the closing
conditions set forth in Section 2.2 or the Purchaser's ability to perform its
obligations under this Agreement or the Letter Agreement.
4.2 Validity. The execution, delivery and performance by the
Purchaser of this Agreement and the Letter Agreement and the consummation of the
transactions contemplated hereby and the transactions contemplated to be
consummated at or promptly following the Closing under the Letter Agreement have
been duly authorized by all necessary action on the part of the Purchaser. This
Agreement has been duly executed and delivered by the Purchaser and, assuming
the valid execution and delivery thereof by the Seller, constitutes, and the
Letter Agreement, when duly executed and delivered by the Purchaser and,
assuming valid execution and delivery thereof by the other parties thereto, will
constitute, a legal, valid and binding obligation of the Purchaser enforceable
against it in accordance with its terms.
4.3 Ability to Protect Its Own Interests and Bear Economic
Risks. By reason of the business and financial experience of its management, the
Purchaser has the capacity to evaluate the risks and merits of, and make an
informed decision with regard to, an investment in the Company and the
transactions contemplated by this Agreement. The Purchaser is able to bear the
economic risk of an investment in the Secondary Shares, and has an adequate
income independent of any income produced from an investment in the Secondary
Shares and has sufficient net worth to sustain a loss of all of its investment
in the Secondary Shares without economic hardship if such a loss should occur.
The Purchaser recognizes that an investment in the Secondary Shares involves a
high degree of risk, including a risk of total loss of Purchaser's investment,
and the Purchaser has full cognizance of and understands all of the risk factors
related to the Purchaser's purchase of the Secondary Shares. The Purchaser has,
with respect to all matters relating to this Agreement and the offer and sale of
the Secondary Shares, relied solely upon the advice of the Purchaser's own
counsel and has not relied upon or consulted the counsel to the Seller.
4.4 Reliance on Exemptions; Acquisition for Own Account. (a)
The Purchaser understands that the Secondary Shares are being offered and sold
to the Purchaser in reliance upon specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Seller is relying upon the truth and accuracy of, and the Purchaser's compliance
with, the representations, warranties, agreements, acknowledgments and
understandings of the Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchaser to acquire
the Secondary Shares.
(b) The Purchaser is a company not formed for the specific
purpose of acquiring the Secondary Shares, with total assets in excess of
$5,000,000. The Secondary Shares have not been offered or sold to the Purchaser
by any form of "general solicitation" or "general advertising", each as defined
in Rule 502(c) of Regulation D under the Securities Act.
(c) The Purchaser is acquiring the Secondary Shares for its
own account and for investment purposes only and with no present intention of
distributing any of the Secondary Shares or any arrangement or understanding
with any other persons regarding the distribution of the Secondary Shares. The
Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the Secondary Shares except in compliance
with the Securities Act (including pursuant to an exemption from the
registration requirements thereof), the rules and regulations thereunder and any
applicable state securities laws. The Purchaser has, in connection with its
decision to purchase the Secondary Shares, not relied upon any representations
or other information (whether oral or written) other than the representations
and warranties of the Seller contained herein and the representations and
warranties of the Company contained in the Company Purchase Agreement.
4.5 Transfer Taxes. Other than the payment of the New York
State stock transfer tax, no stock transfer taxes are due as a result of the
purchase of the Secondary Shares.
5. Termination.
5.1 Termination. Notwithstanding anything contained herein to
the contrary, this Agreement shall automatically terminate upon termination of
the Company Purchase Agreement and may not be otherwise terminated by the Seller
and the Purchaser without the Company's prior written consent.
5.2 Consequences of Termination. In the event of termination
of this Agreement pursuant to Section 5.1, this Agreement shall become void and
of no further force or effect, except for this Section 5.2. Nothing in this
Section 5 or elsewhere in this Agreement shall be deemed to impair the right of
either party to compel specific performance by the other party of its
obligations under this Agreement. Nothing in this Section 5 shall be deemed to
release either party from any liability for any breach by such party of the
terms and provisions of this Agreement.
6. Survival of Representations and Warranties and Covenant;
Certain Remedies. Notwithstanding any investigation made by any party to this
Agreement, all representations and warranties made by the Seller and the
Purchaser herein and in the certificates delivered pursuant hereto shall survive
without limitation as to time. Any covenant or undertaking in this Agreement
contemplating performance by any party following the Closing shall survive in
accordance with its terms.
7. Reasonable Best Efforts. The Seller and the Purchaser will
each use its reasonable best efforts to satisfy the closing conditions prior to
August 31, 2004, including the execution and delivery of the Letter Agreement,
and to consummate the transactions contemplated hereby.
8. Broker's Fee. There is no broker, investment banker,
financial advisor, finder or other person which has been retained by or is
authorized to act on behalf of any party hereto who might be entitled to any fee
or commission for which any other party hereto will be liable in connection with
the execution of this Agreement or the transactions contemplated hereby.
9. 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 9):
(a) if to the Seller, to:
Cement Merchants SA
X.X. Xxx 000
Xxxxxxxx 0
XX-0000 Xxxxxxxxxxx
Principality of Liechtenstein
Attention: The Company Secretary
Facsimile: x000 000-0000
Email: xxxxx@xxxxx.xx
with a copy to:
CMS Xxxxxx Xxxxx
Xxxxxxxxxxxxxxx 0-0
00000 Xxxxxxx
Xxxxxxx
Attention: Xx. Xxxx Xxxxx
Facsimile: x00 000 000 0000
Email: Xxxx.Xxxxx@xxxxxxxx.xx
(b) if to the Purchaser, 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
or to such other person at such other place as the Seller or the Purchaser shall
designate to the other party in writing.
10. Publicity. Except to the extent required by applicable
Law, the Seller shall not, without the prior written consent of the Purchaser,
which consent shall not be unreasonably withheld or delayed, make any public
announcement or issue any press release with respect to the transactions
contemplated by this Agreement. Prior to making any public disclosure with
respect to the transactions contemplated by this Agreement required by
applicable Law, the Seller shall use reasonable efforts to consult with the
Purchaser in advance thereof and shall use its reasonable efforts to reach an
agreement with the Purchaser as to the content and timing of such public
announcement or press release.
11. Assignment. This Agreement and the rights and obligations
hereunder shall not be assignable or transferable by either party without the
prior written consent of the other party hereto. Any attempted assignment in
violation of this Section 11 shall be void.
12. No Third-Party Beneficiaries. Except for the proviso in
Section 2.3 and for Section 5.1 which are for the benefit of the Company, this
Agreement is for the sole benefit of the parties hereto and their permitted
assigns and nothing herein expressed or implied shall give or be construed to
give to any person, other than the parties hereto and such assigns, any legal or
equitable rights hereunder.
13. Amendment. This Agreement may not be modified or amended
except pursuant to an instrument in writing signed by the Seller and the
Purchaser. The observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively) only with the
written consent of the Seller and the Purchaser.
14. Interpretation; Exhibits; Certain Definitions. (a) When a
reference is made in this Agreement to a Section, Subsection or Exhibit, such
reference shall be to a Section or Subsection of or an Exhibit to, 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.
(b) For all purposes hereof:
"affiliate" of any person means another person that directly
or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person.
"Governmental Entity" means any transnational, federal, state,
local or foreign government or any court of competent jurisdiction,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, or any national stock exchange or
national quotation system on which securities issued by the Seller or
any of its subsidiaries, are listed.
"Law" means any law, treaty, statute, ordinance, code, rule,
regulation, judgment, decree, order, writ, award, injunction,
authorization or determination enacted, entered, promulgated, enforced
or issued by a Governmental Entity.
"person" means any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, Governmental Entity or
other entity.
"subsidiary" of any person means another person, 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, if there are no such
voting interests, 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.
15. Entire Agreement. This Agreement and the Letter Agreement
contain the entire agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings relating to such subject matter. None of the parties shall be
liable or bound to any other party in any manner by any representations,
warranties or covenants relating to such subject matter except as expressly set
forth herein or in the Letter Agreement.
16. Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any conflicts of law provisions thereof.
18. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
19. 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, the Letter Agreement or any
transaction contemplated hereby or thereby. 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, the Letter 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) The Purchaser 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 the Purchaser 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 Agreement or the Letter Agreement, or the
consummation of the transactions contemplated hereby or thereby.
20. No Implied Waiver. 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 other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
21. Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably waives any and all right to trial by jury in any legal proceeding
arising out of or related to this Agreement, the Letter Agreement or the
transactions contemplated hereby and thereby.
22. Expenses. Each of the Seller and the Purchaser shall pay
and be responsible for all of its respective fees and expenses, including legal
fees and expenses, incurred in connection with the preparation and negotiation
of this Agreement and the Letter Agreement.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
CEMENT MERCHANTS SA
By
/s/ Xx. Xxxx Xxxxxxxxxxx
------------------------------
Name: Xx. Xxxx Xxxxxxxxxxx
Title: Director
/s/ Hans Preg
------------------------------
Name: Hans Preg
Title: Director
ISTITHMAR PJSC
By
/s/ Xxxxxx Xxxxx Bin Sulayem
------------------------------
Name: Xxxxxx Xxxxx Bin Sulayem
Title: Chairman
EXHIBIT A
Xxxxxxx International Limited
P.O. Box N-4777
Nassau, The Bahamas
July [ ], 2004
Caledonia Investments PLC Cement Merchants SA
Xxxxxx Xxxxx X.X. Xxx 000
00 Xxxxxxxxxx Xxxx Steinort 175
Xxxxxx XX0X 0XX FL-9497 Triesenberg
England Principality of Liechtenstein
Istithmar PJSC World Leisure Group Limited
Emirates Towers, Level 47 c/o Trident Trust Company Limited
Xxxxxx Xxxxx Xxxx XX Xxx 000, Xxxx Xxxx
PO Box 17000 Tortola, British Virgin Islands
Dubai, United Arab Emirates
Letter Agreement
----------------
Ladies and Gentlemen:
Reference is made to (a) the Stock Purchase Agreement dated as
of July 15, 2004, between Xxxxxxx International Limited (the "Company") and
Istithmar PJSC ("Istithmar"), (b) the Stock Purchase Agreements dated as of July
15, 2004 (the "Secondary Purchase Agreements"), between certain selling
shareholders and Istithmar, (c) the Corporate Governance Agreement dated [ ],
2004 (the "Governance Agreement") between the Company and Istithmar (d) the
Registration Rights Agreement dated [ ], 2004 (the "Istithmar Registration
Rights Agreement"), between the Company and Istithmar and (e) the Registration
Rights and Governance Agreement dated as of July 3, 2001 (as in effect on the
date hereof, the "2001 Agreement"), among the Company, Caledonia Investments PLC
("Caledonia"), Cement Merchants SA ("CMS"), World Leisure Group Limited ("WLG")
and certain other parties. Capitalized terms used but not otherwise defined
herein shall have the meaning ascribed to such terms in the 2001 Agreement.
Pursuant to this letter agreement and in connection with the
foregoing, in exchange for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
(a) Istithmar shall, and if applicable, shall cause each of
its Controlled Affiliates to, (i) vote all Shares it Beneficially Owns at any
Shareholders Meeting or in any Written Consent with respect to such Shares, in
favor of any nominee to the Board of Directors of the Company designated by WLG,
Caledonia or CMS in accordance with Section 3.4 of the 2001 Agreement and (ii)
take all other actions reasonably requested by each of WLG, Caledonia and CMS to
cause each of their respective nominees to be appointed to the Board of
Directors of the Company in accordance with Section 3.4 of the 2001 Agreement
and to give effect to the provisions of this letter;
(b) Each of Caledonia, CMS and WLG shall, and in the case of
WLG, CMS and Caledonia, if applicable, shall cause each of its Controlled
Affiliates to, (i) vote all Shares it Beneficially Owns (including any Proxy
Shares) at any Shareholders Meeting or in any Written Consent with respect to
such Shares, in favor of any nominee to the Board of Directors of the Company
designated by Istithmar in accordance with Section 3.2 of the Governance
Agreement, and (ii) take all other actions reasonably requested by Istithmar to
cause such nominee to be appointed to the Board of Directors of the Company and
to give effect to the provisions of Article III of the Governance Agreement and
this letter;
(c) Caledonia agrees that the consummation of the purchase and
sale of Shares pursuant to the Secondary Purchase Agreement to which it is a
party shall constitute the sale of 1,300,000 "Caledonia Tag Shares" for purposes
of Section 5.3.2(b) of the 2001 Agreement;
(d) CMS agrees that the consummation of the purchase and sale
of Shares pursuant to the Secondary Purchase Agreement to which it is a party
shall constitute the sale of 200,000 "CMS Tag Shares" for purposes of Section
5.3.2(b) of the 2001 Agreement; and
(e) Each of Caledonia, CMS and WLG acknowledges and agrees
that the Purchaser is a "Permitted Transferee" and a "Holder" of the Shares
acquired pursuant to the Secondary Purchase Agreements and that such Shares
constitute "Registrable Securities" for purposes of the 2001 Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this letter agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
Very truly yours,
XXXXXXX INTERNATIONAL LIMITED,
By
------------------------------
Name:
Title:
Accepted and agreed to as of the date first above written:
CALEDONIA INVESTMENTS PLC, CEMENT MERCHANTS SA,
By By
----------------------------- -----------------------------
Name: Name:
Title: Title:
ISTITHMAR PJSC, WORLD LEISURE GROUP LIMITED,
By By
----------------------------- -----------------------------
Name: Name:
Title: Title:
