Annual Report of a Foreign Private Issuer — Form 20-F
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 20-F Royal Caribbean Cruises Ltd. 57 291K
2: EX-2.10 Ninth Supplemental Indenture 13 42K
3: EX-2.11 Tenth Supplemental Indenture 42 131K
4: EX-2.14 Credit Agreement Dated 6/9/2000 93 298K
5: EX-2.15 Credit Agreement Dated 12/20/2000 88 285K
6: EX-8.1 List of Significant Subsidiaries 1 8K
7: EX-10.1 Consent of Pricewaterhousecoopers LLP 1 6K
EXHIBIT 2.11
ROYAL CARIBBEAN CRUISES LTD., as Issuer
and
THE BANK OF NEW YORK, as Trustee
---------------------
TENTH SUPPLEMENTAL INDENTURE
Dated as of February 2, 2001
---------------------
LIQUID YIELD OPTION(TM) NOTES
Supplemental to Indenture dated as of July 15, 1994
TENTH SUPPLEMENTAL INDENTURE, dated as of February 2, 2001
(the "Tenth Supplemental Indenture"), between ROYAL CARIBBEAN CRUISES LTD., a
Liberian corporation (hereinafter called the "Company"), and THE BANK OF NEW
YORK (as successor to NationsBank of Georgia, National Association), as trustee
under the Indenture referred to below (hereinafter called the "Trustee").
WHEREAS, the Company entered into an Indenture dated as of
July 15, 1994 (the "Basic Indenture", all capitalized terms used in this Tenth
Supplemental Indenture and not otherwise defined being used as defined in the
Basic Indenture) with the Trustee, for the purposes of issuing its unsecured and
unsubordinated indebtedness in one or more series in such principal amount or
amounts as may from time to time be authorized by or pursuant to the authority
granted in one or more resolutions of the Board of Directors of the Company; and
WHEREAS, the Company proposes to issue a series of Liquid
Yield Option(TM) Notes due 2021 (such securities being referred to herein as the
"LYON" or "LYONs" or the "Securities," unless the context requires otherwise);
and
WHEREAS, Sections 901(6) and 901(10) of the Basic Indenture
provide that without the consent of the Holders of the securities of any series
issued under the Basic Indenture, the Company, when authorized by a Board
Resolution, and the Trustee may enter into one or more indentures supplemental
to the Basic Indenture (a) to establish the form or terms of securities of any
series as contemplated by Sections 201 and 301 thereof and (b) to cure any
ambiguity, to correct or supplement any provision in the Basic Indenture which
may be inconsistent with any other provision of the Basic Indenture or to make
any other provisions with respect to matters or questions arising under the
Basic Indenture, provided that such action shall not adversely affect the
interests of the Holders of the securities of any series in any material
respect; and
WHEREAS, the entry into this Tenth Supplemental Indenture by
the parties hereto is in all respects authorized by the provisions of the Basic
Indenture; and
WHEREAS, all things necessary have been done to make this
Tenth Supplemental Indenture, when executed and delivered by the Company, the
legal, valid and binding agreement of the Company, in accordance with its terms.
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NOW, THEREFORE, THIS INDENTURE WITNESSETH:
The parties hereto mutually covenant and agree as follows:
SECTION 1. The Basic Indenture is hereby amended solely with respect to
a series of securities that consists of LYONs, as follows:
(A) By amending Section 101 to add new definitions thereto in
appropriate alphabetical sequences, as follows:
"Issue Date" of any Security means the date on which the
Security was originally issued or deemed issued as set forth on the
face of the Security.
"Issue Price" of any Security means, in connection with the
original issuance of such Security, the initial issue price at which
the Security is sold as set forth on the face of the Security.
"Original Issue Discount" of any Security means the difference
between the Issue Price and the principal amount at Maturity of the
Security as set forth on the face of the Security.
"Principal Amount at Maturity" or "principal amount at
Maturity" of a Security means the principal amount at Maturity as set
forth on the face of the Security.
(B) By adding the following Sections to Article 1:
Section 114. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
The Company agrees that any legal suit, action or proceeding
brought by any party to enforce any rights under or with respect to the
Indenture or the Securities may be instituted in any state or federal
court in The City of New York, State of New York, and waives to the
fullest extent permitted by law any objection which it may now or
hereafter have to the laying of venue of any such suit, action or
proceeding and irrevocably submits to the non-exclusive jurisdiction of
any such court in any such suit, action or proceeding. The Company
hereby irrevocably designates and appoints the Company's General
Counsel as the Company's authorized agent to receive and forward on its
behalf service of any and all process which may be served in any such
suit, action or proceeding in any such court and agrees that service of
process upon the Company's General Counsel at his office at the
Company, 1050 Caribbean Way, Miami, Florida 33132 and written notice of
said service to the Company, mailed or delivered to the Company's
General Counsel, 1050 Caribbean Way, Miami, Florida 33132, shall be
deemed in every respect effective service of process upon the Company
in any such suit, action or proceeding and shall be taken and held to
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be valid personal service upon the Company. Said designation and
appointment shall be irrevocable. Nothing in this Section 114 shall
affect the right of any party to the Indenture to serve process in any
manner permitted by law or limit the right of any party to the
Indenture to bring proceedings against the Company in the courts of any
jurisdiction or jurisdictions. The Company further agrees to take any
and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such
designation and appointment of the Company's General Counsel in full
force and effect so long as the Indenture or any of the Securities
shall be outstanding. To the extent that the Company has or hereafter
may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, the Company hereby irrevocably
waives such immunity in respect of its obligations under the Indenture
and the Securities, to the extent permitted by law.
Section 115. NO RECOURSE AGAINST OTHERS.
A director, officer, stockholder or incorporator, as such, of
the Company shall not have any liability for any obligation, covenant
or agreement of the Company under this Indenture or any indenture
supplemental hereto or in the Securities or for any claim based on, in
respect of or by reason of such obligation, covenant or agreement or
their creation under any rule of law, statute or constitutional
provision or the enforcement of any assessment or by any legal or
equitable proceeding or otherwise. Each Holder by accepting any of the
Securities waives and releases all such liability.
(C) By amending clause (e) in Section 101 to insert the phrase ",
in cash" after the phrase "U.S. dollars".
(D) By amending Article V by:
(a) deleting in Section 502 ("Acceleration of Maturity;
Rescission and Annulment") in the first paragraph the
phrase "If an Event of Default" and replacing it with
the phrase "If an Event of Default (other than an
Event of Default specified in Sections 501(6) or
501(7) involving the Company,"
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(b) deleting in Section 502 in the first paragraph the
phrase "25% in principal amount" and replacing it
with the phrase "25% in aggregate Principal Amount at
Maturity",
(c) deleting in Section 502 in the first paragraph the
phrase "may declare the principal amount" and
replacing it with the phrase "may declare an amount
equal to the Issue Price of the Securities plus the
accrued Original Issue Discount through and including
the date of such declaration",
(d) adding in Section 502 at the end of the first
paragraph the sentence, "In the case of an Event of
Default specified in Sections 501(6) or 501(7)
involving the Company, the Issue Price of the
Securities plus the accrued Original Issue Discount
accreted thereon through and including the date of
the occurrence of such event shall automatically
become and be immediately due and payable.",
(e) deleting in Section 502 in the second paragraph the
phrase "principal amount" and replacing it with the
words "aggregate Principal Amount at Maturity",
(f) deleting in clause 502(1)(B) the phrase "the
principal of" and replacing it with the phrase "the
Issue Price of the Securities plus the accrued
Original Issue Discount of" and
(g) deleting in Sections 507(2), 507(5), 512 and 513 the
phrase "principal amount" and replacing it with the
phrase "aggregate Principal Amount at Maturity".
(E) By amending Section 902 ("Supplemental Indentures with Consent
of Holders") by replacing in clause (1) the words "conversion
provisions," with the words "conversion provisions or rights
to require the Company to purchase a Security," replacing in
clause (3) the "." with ", or" and adding clauses (4), (5)and
(6) as follows:
(4) make any change in the manner of calculation or rate
of accrual of Original Issue Discount on any Security
or extend the time for payment of Original Issue
Discount, or
(5) reduce the redemption price or change in control
purchase price of any Security, or
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(6) make any change that adversely affects the right of a
Holder to receive Common Stock upon surrendering a
Security for conversion, or
(7) make any change that adversely affects the right of a
Holder to require the Company to purchase a Security.
(F) By amending Section 1007 ("Additional Amounts") by
(a) in the second paragraph, replacing the words "All
payments made" with the words "All payments, whether
in cash, Common Stock or otherwise, made" and
(b) In the fourth paragraph, deleting the phrase "the
payment of the principal, premium, if any, or
interest" and replacing it with the phrase "the
payment of the principal, premium, if any, interest,
Issue Price or accrued Original Issue Discount".
(G) By adding the following Sections to Article 10:
Section 1008. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
The Company shall file with the Internal Revenue Service, the
Trustee and non-corporate U.S. Holders promptly after the end of each
calendar year (i) a written notice specifying the amount of Original
Issue Discount (including daily rates and accrual periods) accrued on
outstanding Securities as of the end of such year and (ii) such other
specific information relating to such Original Issue Discount as may
then be relevant under the Internal Revenue Code of 1986, as amended
from time to time.
(H) By amending the following Sections of Article 11:
(1) Section 1103 ("Selection by Trustee of Securities to
be Redeemed") is hereby amended by adding the
following new fourth paragraph: "If any Security
selected for partial redemption is converted in part
before termination of the conversion right with
respect to the portion of the Security so selected,
the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected
for redemption. Securities which have been converted
during a selection of Securities to be redeemed may
be treated by the Trustee as outstanding for the
purpose of such selection."
(2) Section 1104 ("Notice of Redemption") is hereby
amended by replacing the "30" in the first paragraph
with "15", replacing in two places in clause (4) the
words "principal amount" with "Principal Amount at
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Maturity", deleting the word "and" in clause (7),
replacing the "." with a "," in clause (8) and adding
the following clauses (9), (10), (11), (12) and (13):
(9) the Conversion Rate,
(10) the name and address of the Paying Agent and
the Conversion Agent,
(11) that Securities called for redemption may be
converted at any time before the close of
business on the date that is two Business
Days prior to the Redemption Date,
(12) that Holders who want to convert Securities
must satisfy the requirements set forth in
the Securities and the Indenture, and
(13) that, unless the Company defaults in making
payment of such Redemption Price, Original
Issue Discount on Securities called for
redemption will cease to accrue on and after
the Redemption Date.
(3) Section 1106 ("Securities Payable on Redemption
Date") shall be amended by adding to the end of the
first sentence the phrase "; provided, however, that
Securities which are converted in accordance with the
terms of this Indenture shall not be due and payable
on the Redemption Date." and replacing the word
"bear" wherever it appears in Section 1106 with the
phrase "bear or accrue".
(4) Section 1108 ("Right of Redemption") shall be amended
by deleting the phrase "at a redemption price equal
to 100% of the principal amount plus accrued interest
to the date fixed for redemption" and replacing such
phrase with the words "at a redemption price equal to
the Issue Price of the Securities plus the accrued
Original Issue Discount on the Securities accrued
through and including the date fixed for redemption".
(I) By adding the following Sections to Article 11:
Section 1109. REDEMPTION OF LYONS AT THE OPTION OF THE COMPANY.
The Company, at its option, may redeem the Securities during
the time period specified by and in accordance with the provisions of
paragraph 5 of the Securities. Securities or portions of Securities
called for redemption pursuant to this provision will be convertible by
the Holder until the close of business on the second Business Day prior
to the Redemption Date. Notwithstanding anything stated herein to the
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contrary, payment of the principal amount at final Maturity shall not
be deemed a redemption and at final Maturity the Company must pay the
principal amount of the Securities in cash and not in shares of the
Company's Common Stock.
Section 1110. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER.
(a) General. At the option of the Holder thereof, Securities
shall be purchased by the Company pursuant to paragraph 6 of the
Securities on February 2, 2005 and February 2, 2011 (each, a "Purchase
Date") at the purchase prices set forth below (each, a "Purchase
Price", as applicable):
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PURCHASE PRICE PER $1,000 OF LYONS
PURCHASE DATE PURCHASE PRICE
---------------------- ---------------
February 2, 2005 $462.72
February 2, 2011 $617.76
Purchases of Securities hereunder shall be made, at the option of the
Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a written notice
of purchase (a "Purchase Notice") at any time from the opening
of business on the date that is at least 20 Business Days
prior to a Purchase Date until the close of business on the
third Business Day prior to such Purchase Date stating:
(A) the certificate numbers of the Securities which the
Holder will deliver to be purchased,
(B) the portion of the Principal Amount at Maturity of
the Securities which the Holder will deliver to be
purchased, which portion must be in Principal Amounts
at Maturity of $1,000 or an integral multiple
thereof,
(C) that such Securities shall be purchased as of the
Purchase Date pursuant to the terms and conditions
specified in paragraph 6 of the Securities and in
this Indenture, and
(D) that in the event the Company elects, pursuant to the
Indenture to pay the Purchase Price to be paid on
February 2, 2005 or February 2, 2011, in whole or in
part, in Common Stock but such portion of the
Purchase Price shall ultimately be payable to such
Holder entirely in cash because any of the conditions
to payment of the Purchase Price or portion of the
Purchase Price in Common Stock is not satisfied prior
to the close of business on February 2, 2005 or
February 2, 2011, as the case may be and as set forth
in Section 1110(d), whether such Holder elects (i) to
withdraw such Purchase Notice as to some or all of
the Securities to which such Purchase Notice relates
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(stating the Principal Amount at Maturity and
certificate numbers, if any, of the Securities as to
which such withdrawal shall relate), or (ii) to
receive cash in respect of the entire Purchase Price
for all Securities (or portions thereof) to which
such Purchase Notice relates; and
(2) delivery of such Security to the Paying Agent prior to, on or
after the Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent, such
delivery being a condition to receipt by the Holder of the
Purchase Price therefor; provided, however, that such Purchase
Price shall be so paid pursuant to this Section 1110 only if
the Security so delivered to the Paying Agent shall conform in
all respects to the description thereof in the related
Purchase Notice, as determined by the Company.
If a Holder, in such Holder's Purchase Notice and in any written notice
of withdrawal delivered by such Holder pursuant to the terms of Section 1112,
fails to indicate such Holder's choice with respect to the election set forth in
clause (D) of Section 1110(a)(1), such Holder shall be deemed to have elected to
receive cash in respect of the entire Purchase Price for all Securities subject
to such Purchase Notice in the circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Section 1110, a portion of a Security if the Principal Amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 1110 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Purchase Date and
the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Purchase Notice contemplated by this Section 1110(a)
shall have the right to withdraw such Purchase Notice at any time prior to the
close of business on the Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 1112.
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The Paying Agent shall promptly notify the Company of the receipt by it
of any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price for
Payment on February 2, 2005 or February 2, 2011. The Securities to be purchased
on February 2, 2005 or February 2, 2011 pursuant to Section 1110(a) may be paid
for, at the election of the Company, in U.S. legal tender ("cash") or Common
Stock or in any combination of cash and Common Stock subject to the conditions
set forth in Sections 1110(c) and (d). The Company shall designate, in the
Company Notice delivered pursuant to Section 1110(e), whether the Company will
purchase the Securities for cash or Common Stock, or, if a combination thereof,
the percentages of the Purchase Price of Securities in respect of which it will
pay in cash or Common Stock; provided that the Company will pay cash in lieu of
fractional interests in Common Stock. For purposes of determining the existence
of potential fractional interests, all Securities subject to purchase by the
Company held by a Holder shall be considered together (no matter how many
separate certificates are to be presented). Each Holder whose Securities are
purchased pursuant to this Section 1110 shall receive the same percentage of
cash or Common Stock in payment of the Purchase Price for such Securities,
except (i) as provided in Section 1110(d) with regard to the payment of cash in
lieu of fractional shares of Common Stock and (ii) in the event that the Company
is unable to purchase the Securities of a Holder or Holders for Common Stock
because any necessary qualifications or registrations of the Common Stock under
applicable securities laws cannot be obtained, the Company may purchase the
Securities of such Holder or Holders for cash. The Company may not change its
election with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given its Company Notice to
Securityholders except pursuant to Section 1110(d) in the event of a failure to
satisfy, prior to the close of business on the Purchase Date, any condition to
the payment of the Purchase Price, in whole or in part, in Common Stock.
At least three Business Days before each Company Notice Date, the
Company shall deliver an Officers' Certificate to the Trustee specifying:
(i) if the Purchase Date is February 2, 2005 or February 2,
2011, the manner of payment selected by the Company,
(ii) the information required by Section 1110(e),
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(iii) if the Purchase Date is February 2, 2005 or February 2,
2011, if the Company elects to pay the Purchase Price, or a specified
percentage thereof, in Common Stock, that the conditions to such manner
of payment set forth in Section 1110(d) have been or will be complied
with, and
(iv) whether the Company desires the Trustee to give the
Company Notice required by Section 1110(e).
(c) Purchase with Cash. On February 2, 2005 and February 2, 2011, at
the option of the Company, the Purchase Price of Securities in respect of which
a Purchase Notice pursuant to Section 1110(a) has been given, or a specified
percentage thereof, may be paid by the Company with cash equal to the aggregate
Purchase Price of such Securities or in Common Stock pursuant to clause 1110(d).
The Company Notice, as provided in Section 1110(e), shall be sent to all Holders
at their addresses shown in the Security Register of the Security Registrar (and
to beneficial owners as required by applicable law) not less than 20 Business
Days prior to such Purchase Date (the "Company Notice Date").
(d) Payment by Issuance of Common Stock. On February 2, 2005 and
February 2, 2011, at the option of the Company, the Purchase Price of Securities
in respect of which a Purchase Notice pursuant to Section 1110(a) has been
given, or a specified percentage thereof, may be paid by the Company by the
issuance of a number of shares of Common Stock equal to the quotient obtained by
dividing (i) the amount of cash to which the Securityholders would have been
entitled had the Company elected to pay all or such specified percentage, as the
case may be, of the Purchase Price of such Securities in cash by (ii) the Market
Price of a share of Common Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Common Stock in
payment of the Purchase Price. Instead the Company will pay cash for the current
market value of the fractional share. The current market value of a fraction of
a share shall be determined by multiplying the Market Price by such fraction and
rounding the product to the nearest whole cent. It is understood that if a
Holder elects to have more than one Security purchased, the number of shares of
Common Stock shall be based on the aggregate amount of Securities to be
purchased.
If the Company elects to purchase the Securities by the issuance of
Common Stock on February 2, 2005 or February 2, 2011, the Company Notice, as
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provided in Section 1110(e), shall be sent to the Holders (and to beneficial
owners as required by applicable law) not later than the Company Notice Date.
The Company's right to exercise its election to purchase Securities on
February 2, 2005 or February 2, 2011 through the issuance of Common Stock shall
be conditioned upon:
(i) prior to issuance of the Common Stock, listing such Common
Stock on the principal United States securities exchange on which the
Company's Common Stock is then listed or, if not so listed, on the
Nasdaq National Market or their reasonable equivalent in the United
States;
(ii) the Company's not having given its Company Notice of an
election to pay entirely in cash and its giving of timely Company
Notice of election to purchase all or a specified percentage of the
Securities with Common Stock as provided herein;
(iii) the registration of such Common Stock under the
Securities Act of 1933, as amended, and the Exchange Act, in each case,
if required;
(iv) any necessary qualification or registration under
applicable securities laws or the availability of an exemption from
such qualification and registration; and
(v) the receipt by the Trustee of an Officers' Certificate and
an Opinion of Counsel each stating that (A) the terms of the issuance
of the Common Stock are in conformity with this Indenture and (B) the
Common Stock to be issued by the Company in payment of the Purchase
Price in respect of Securities has been duly authorized and, when
issued and delivered pursuant to the terms of this Indenture in payment
of the Purchase Price in respect of the Securities, will be validly
issued, fully paid and non-assessable and, to the best of such
counsel's knowledge, free from preemptive rights, and, in the case of
such Officers' Certificate, stating that the conditions (i) through
(iv) above and the condition set forth in the second succeeding
sentence have been satisfied and, in the case of such Opinion of
Counsel, stating that the conditions (i) and (iii) above has been
satisfied.
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Such Officers' Certificate shall also set forth the number of shares of
Common Stock to be issued for each $1,000 principal amount at Maturity of
Securities and the Sale Price of a share of Common Stock on each trading day
during the period commencing on the first trading day of the period during which
the Market Price is calculated and ending on February 2, 2005 or February 2,
2011, as the case may be. The Company may pay the Purchase Price (or any portion
thereof) in Common Stock only if the information necessary to calculate the
Market Price is published in a daily newspaper of national circulation in the
United States. If the foregoing conditions are not satisfied with respect to a
Holder or Holders prior to the close of business on the Purchase Date whether or
not the Company has elected to purchase the Securities pursuant to this Section
1110 through the issuance of Common Stock, the Company shall pay the entire
Purchase Price of the Securities of such Holder or Holders in cash.
The "Market Price" of the Common Stock means the average of the Sale
Prices of the Common Stock for the five trading day period ending on the third
Business Day prior to the applicable Purchase Date (if the third Business Day
prior to the applicable Purchase Date is a trading day or, if not, then on the
last trading day prior thereto), appropriately adjusted to take into account the
occurrence, during the period commencing on the first of such trading days
during such five trading day period and ending on such Purchase Date, of any
event described in Sections 1306, 1307 or 1308; subject, however, to the
conditions set forth in Sections 1309 and 1310.
The "Sale Price" of the Common Stock on any date means the closing per
share sale price (or, if no closing sale price is reported, the average of the
bid and ask prices or, if more than one in either case, the average of the
average bid and average ask prices) on such date as reported in the composite
transactions for the principal United States securities exchange on which the
Common Stock is traded or, if the Common Stock is not listed on a United States
national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System or the reasonable
United States equivalent.
Upon determination of the actual number of shares of Common Stock to be
issued for each $1,000 principal amount at Maturity of Securities, the Company
will issue a press release in a commercially reasonable manner describing such
determination and will publish such determination on the Company's Web site on
the World Wide Web or a reasonable equivalent.
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(e) Notice of Election. In connection with any purchase of Securities
pursuant to paragraph 6 of the Securities, the Company shall give notice to
Holders setting forth information specified in this Section 1110(e) (the
"Company Notice").
In the event the Company has elected to pay the Purchase Price (or a
specified percentage thereof) with Common Stock on February 2, 2005 or February
2, 2011, the Company Notice shall:
(1) state that each Holder will receive Common Stock with a Market
Price determined as of a specified date prior to the Purchase
Date equal to such specified percentage of the Purchase Price
of the Securities held by such Holder (except any cash amount
to be paid in lieu of fractional shares);
(2) set forth the method of calculating the Market Price of the
Common Stock; and
(3) state that because the Market Price of Common Stock will be
determined prior to the Purchase Date, Holders will bear the
market risk with respect to the value of the Common Stock to
be received from the date such Market Price is determined to
the Purchase Date.
In any case, each Company Notice shall include a form of Purchase
Notice to be completed by a Securityholder and shall state:
(i) the Purchase Price and the Conversion Rate;
(ii) the name and address of the Paying Agent and the
Conversion Agent;
(iii) that Securities as to which a Purchase Notice has
been given may be converted if they are otherwise
convertible only in accordance with Article 13 of the
Indenture and the Securities if the applicable
Purchase Notice has been withdrawn in accordance with
the terms of this Indenture;
(iv) that Securities must be surrendered to the Paying
Agent to collect payment;
(v) that the Purchase Price for any security as to which
a Purchase Notice has been given and not withdrawn
will be paid promptly following the later of the
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Purchase Date and the time of surrender of such
Security as described in Section 1110(b)(iv);
(vi) the procedures the Holder must follow to exercise
rights under Section 1110 and a brief description of
those rights;
(vii) briefly, the conversion rights of the Securities;
(viii) the procedures for withdrawing a Purchase Notice
(including, without limitation, for a conditional
withdrawal pursuant to the terms of Section
1110(a)(1)(D) or Section 1112);
(ix) that, unless the Company defaults in making payment
on Securities for which a Purchase Notice has been
submitted, Original Issue Discount on such Securities
will cease to accrue on and after the Purchase Date;
(x) the CUSIP number of the Securities; and
(xi) any additional information which the Company wishes
to provide.
At the Company's request, the Trustee shall give such Company Notice in
the Company's name and at the Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be prepared by the Company.
(f) Covenants of the Company. All shares of Common Stock delivered upon
purchase of the Securities shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and nonassessable, and
shall be free from preemptive rights and free of any lien or adverse claim. The
Company shall list or have quoted any Common Stock to be issued to purchase
Securities on each securities exchange or over-the-counter or other market on
which the Company's outstanding Common Stock is then listed or quoted.
(g) Procedure upon Purchase. The Company shall deposit cash (in respect
of cash purchases under Section 1110 or for fractional interests, as applicable)
or Common Stock, or a combination thereof, as applicable, at the time and in the
manner as provided in Section 1113, sufficient to pay the aggregate Purchase
Price of all Securities to be purchased pursuant to this Section 1110. As soon
as practicable after the Purchase Date, the Company shall cause to be delivered
to each Holder entitled to receive Common Stock through the Paying Agent, a
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certificate for the number of full shares of Common Stock issuable in payment of
the Purchase Price and cash in lieu of any fractional interests. The person in
whose name the certificate for Common Stock is registered shall be treated as a
holder of record of Common Stock on the Business Day following the Purchase
Date. Subject to Section 1110, no payment or adjustment will be made for
dividends on the Common Stock the record date for which occurred on or prior to
the Purchase Date.
(h) Taxes. If a Holder of a Security purchased on February 2, 2005 or
February 2, 2011 is paid in Common Stock, the Company shall pay any documentary,
stamp or similar issue or transfer tax due on such issue of Common Stock.
However, the Holder shall pay any such tax which is due because the Holder
requests the Common Stock to be issued in a name other than the Holder's name.
The Paying Agent may refuse to deliver the certificates representing the Common
Stock being issued in a name other than the Holder's name until the Paying Agent
receives a sum sufficient to pay any tax which will be due because the Common
Stock is to be issued in a name other than the Holder's name. Nothing herein
shall preclude any income tax withholding required by law or regulations.
Nothing in this Section 1110(h) shall be deemed to limit the provisions of
Section 1007 and, in the event of a conflict between such sections, the
provisions of Section 1007 shall govern.
Section 1111. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON
CHANGE IN CONTROL.
(a) If on or prior to February 2, 2005 there shall have occurred a
Change in Control, Securities shall be purchased by the Company, at the option
of the Holder thereof, at a purchase price in cash specified in paragraph 6 of
the Securities (the "Change in Control Purchase Price"), as of a date that is no
later than 35 Business Days after the occurrence of the Change in Control (the
"Change in Control Purchase Date") and no earlier than the Change in Control,
subject to satisfaction by or on behalf of the Holder of the requirements set
forth in Section 1111(c).
A "Change in Control" shall be deemed to have occurred at such time as
either of the following events shall occur:
(i) There shall be consummated any share exchange,
consolidation or merger of the Company pursuant to which the Common
Stock would be converted into cash, securities or other property, in
each case other than a share exchange, consolidation or merger of the
Company in which the holders of the Common Stock immediately prior to
the share exchange, consolidation or merger have, directly or
17
indirectly, at least a majority of the total voting power in the
aggregate of all classes of Capital Stock of the continuing or
surviving corporation immediately after the share exchange,
consolidation or merger; or
(ii) Any person (for the purposes of this Section 1111 only,
as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act), including its Affiliates and Associates, other than
the Company, its Subsidiaries or any Permitted Holder, files a Schedule
TO (or any successor schedule, form or report under the Exchange Act)
or other report, including a Schedule 13D (or any successor schedule,
form or report under the Exchange Act) disclosing that such person has
become the direct or indirect beneficial owner (as the term "beneficial
owner" is defined under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of 50% or more of the voting power
of the Common Stock then outstanding or other Capital Stock into which
the Company's Common Stock is reclassified or changed.
"Permitted Holder" means Cruise Associates, a Bahamian General
Partnership, and A Wilhemsen AS., a Norwegian Corporation or any "person" (as
such term is used on Section 13(d) or 14(d) of the Exchange Act), directly or
indirectly, controlling, controlled by, or under common control with either or
both of Cruise Associates or A. Wilhemsen AS.
The provisions of this Section 1111 will apply notwithstanding the
Company's failure to comply with the provisions of Article 8 or any other
provision hereof.
"Associate" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect on the
date hereof.
(b) At any time prior to or after a proposed Change in Control but no
later than 15 Business Days after the occurrence of a Change in Control, the
Company shall mail a written notice of the Change in Control by first- class
mail to the Trustee and to each Holder at their addresses shown in the Security
Register of the Security Registrar (and to beneficial owners as required by
18
applicable law). The notice shall include a form of Change in Control Purchase
Notice to be completed by the Securityholder and shall state:
(1) briefly, the events causing a Change in Control and the date
of such Change in Control;
(2) the date by which the Change in Control Purchase Notice
pursuant to this Section 1111 must be delivered to the Paying
Agent and other persons;
(3) the Change in Control Purchase Price;
(4) the Change in Control Purchase Date (which may not be prior
to, but may be simultaneous with, the consummation of the
transactions underlying the Change of Control);
(5) the name and address of the Paying Agent and the Conversion
Agent;
(6) the Conversion Rate and any adjustments thereto;
(7) that Securities as to which a Change in Control Purchase
Notice has been given may be converted if they are otherwise
convertible pursuant to Article 13 hereof only if the Change
in Control Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(8) that Securities must be surrendered to the Paying Agent to
collect payment;
(9) that the Change in Control Purchase Price for any Security as
to which a Change in Control Purchase Notice has been duly
given and not withdrawn will be paid promptly following the
later of the Change in Control Purchase Date and the time of
surrender of such Security as described in Section 1111(b)(8);
(10) briefly, the procedures the Holder must follow to exercise
rights under this Section 1111;
(11) briefly, the conversion rights, if any, of the Securities
before and after the transaction;
(12) the procedures for withdrawing a Change in Control Purchase
Notice;
19
(13) that, unless the Company defaults in making payment of such
Change in Control Purchase Price, Original Issue Discount on
Securities surrendered for purchase by the Company will cease
to accrue on and after the Change in Control Purchase Date;
and
(14) the CUSIP number of the Securities.
(c) A Holder may exercise its rights specified in Section 1111(a) upon
delivery of a written notice of purchase (a "Change in Control Purchase Notice")
to the Paying Agent at any time prior to the close of business on the third
Business Day prior to the Change in Control Purchase Date, stating:
(1) the certificate number of the Security which the Holder will
deliver to be purchased;
(2) the portion of the principal amount at Maturity of the
Security which the Holder will deliver to be purchased, which
portion must be $1,000 or an integral multiple thereof; and
(3) that such Security shall be purchased pursuant to the terms
and conditions specified in paragraph 6 of the Securities.
The delivery of such Security to the Paying Agent prior to, on or after
the Change in Control Purchase Date (together with all necessary endorsements)
at the offices of the Paying Agent shall be a condition to the receipt by the
Holder of the Change in Control Purchase Price therefor; provided, however, that
such Change in Control Purchase Price shall be so paid pursuant to this Section
1111 only if the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof set forth in the related Change in Control
Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 1111, a portion of a Security if the principal amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 1111 shall be consummated by the delivery of the consideration to
20
be received by the Holder promptly following the later of the Change in Control
Purchase Date and the time of delivery of the Security to the Paying Agent in
accordance with this Section 1111.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Change in Control Purchase Notice contemplated by this
Section 1111(c) shall have the right to withdraw such Change in Control Purchase
Notice at any time prior to the close of business on the Change in Control
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 1112.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Change in Control Purchase Notice or written withdrawal thereof.
Section 1112. EFFECT OF PURCHASE NOTICE OR CHANGE IN CONTROL PURCHASE
NOTICE.
Upon receipt by the Paying Agent of the Purchase Notice or Change in
Control Purchase Notice specified in Section 1110(a) or Section 1111(c), as
applicable, the Holder of the Security in respect of which such Purchase Notice
or Change in Control Purchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Change in Control Purchase Notice is withdrawn
in accordance with the procedures set forth in the following two paragraphs)
thereafter be entitled to receive solely the Purchase Price or Change in Control
Purchase Price, as the case may be, with respect to such Security. Such Purchase
Price or Change in Control Purchase Price shall be paid to such Holder, subject
to receipts of funds and/or securities by the Paying Agent, promptly following
the later of (x) the Purchase Date or the Change in Control Purchase Date, as
the case may be, with respect to such Security (provided the conditions in
Section 1110(a) or Section 1111(c), as applicable, have been satisfied) and (y)
the time of delivery of such Security to the Paying Agent by the Holder thereof
in the manner required by Section 1110(a) or Section 1111(c), as applicable.
Securities in respect of which a Purchase Notice or Change in Control Purchase
Notice, as the case may be, has been given by the Holder thereof may not be
converted pursuant to Article 13 hereof on or after the date of the delivery of
such Purchase Notice or Change in Control Purchase Notice, as the case may be,
unless such Purchase Notice or Change in Control Purchase Notice, as the case
may be, has first been validly withdrawn as specified in the following two
paragraphs.
21
A Purchase Notice or Change in Control Purchase Notice, as the case may
be, may be withdrawn by means of a written notice of withdrawal delivered to the
office of the Paying Agent in accordance with the Purchase Notice or Change in
Control Purchase Notice, as the case may be, at any time prior to the close of
business on the Purchase Date or the Change in Control Purchase Date, as the
case may be, specifying:
(1) the certificate number, if any, of the Security in respect of
which such notice of withdrawal is being submitted,
(2) the principal amount at Maturity of the Security with respect
to which such notice of withdrawal is being submitted, and
(3) the principal amount at Maturity, if any, of such Securities
which remains subject to the original Purchase Notice or
Change in Control Purchase Notice, as the case may be, and
which has been or will be delivered for purchase by the
Company.
A written notice of withdrawal of a Purchase Notice may be in the form
set forth in the preceding paragraph or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
1110(a)(1)(D) or (ii) a conditional withdrawal containing the information set
forth in Section 1110(a)(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
There shall be no purchase of any Securities pursuant to Section 1110
or 1111 if there has occurred (prior to, on or after, as the case may be, the
giving, by the Holders of such Securities, of the required Purchase Notice or
Change in Control Purchase Notice, as the case may be) and is continuing an
Event of Default (other than a default in the payment of the Purchase Price or
Change in Control Purchase Price, as the case may be, with respect to such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities (x) with respect to which a Purchase Notice or Change in
Control Purchase Notice, as the case may be, has been withdrawn in compliance
with this Indenture, or (y) held by it during the continuance of an Event of
Default (other than a default in the payment of the Purchase Price or Change in
Control Purchase Price, as the case may be, with respect to such Securities) in
which case, upon such return, the Purchase Notice or Change in Control Purchase
Notice with respect thereto shall be deemed to have been withdrawn.
22
Section 1113. DEPOSIT OF PURCHASE PRICE OR CHANGE IN CONTROL PURCHASE
PRICE.
Prior to 10:00 a.m. (local time in the City of New York) on the
Business Day following the Purchase Date or the Change in Control Purchase Date,
as the case may be, the Company shall deposit with the Trustee or with the
Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of
them is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 606 an amount of money (in immediately available funds if
deposited on such Business Day) or Common Stock, if permitted hereunder,
sufficient to pay the aggregate Purchase Price or Change in Control Purchase
Price, as the case may be, of all the Securities or portions thereof which are
to be purchased as of the Purchase Date or Change in Control Purchase Date, as
the case may be.
If the Paying Agent holds money (or, in the case of the Purchase Price,
securities) sufficient to pay the Purchase Price or Change in Control Purchase
Price, as the case may be, on the Business Day following the Purchase Date or
the Change in Control Purchase Date, in accordance with the terms hereof, then
immediately after such Purchase Date or Change in Control Purchase Date, as the
case may be, the Security will cease to be Outstanding and Original Issue
Discount on such surrendered Securities will cease to accrue, whether or not the
Securities is delivered to the Paying Agent. Thereafter, all other rights of the
Holder shall terminate, other than the right to receive the Purchase Price or
Change in Control Purchase Price, as the case may be, upon delivery of the
Securities.
Section 1114. SECURITIES PURCHASED IN PART.
Any Security which is to be purchased only in part shall be surrendered
at the office of the Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate principal
amount at Maturity equal to, and in exchange for, the portion of the principal
amount at Maturity of the Security so surrendered which is not purchased.
23
Section 1115. COVENANT TO COMPLY WITH SECURITIES LAWS UPON PURCHASE OF
SECURITIES.
The Company shall to the extent applicable (i) comply with the
provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the
Exchange Act which may then be applicable, (ii) file the related Schedule TO (or
any successor schedule, form or report) or any other required schedule under the
Exchange Act, and (iii) otherwise comply with all applicable securities laws so
as to permit the rights and obligations under Sections 1110 and 1111 to be
exercised in the time and in the manner specified in Sections 1110 and 1111
Section 1116. REPAYMENT TO THE COMPANY.
The Trustee or Paying Agent, as the case may be, shall return to the
Company any cash or Common Stock that remain unclaimed as provided in paragraph
11 of the Securities, together with interest or dividends, if any, thereon
(subject to the provisions of Section 606), held by them for the payment of the
Purchase Price or Change in Control Purchase Price, as the case may be;
provided, however, that to the extent that the aggregate amount of cash or
Common Stock deposited by the Company pursuant to Section 1113 exceeds the
aggregate Purchase Price or Change in Control Purchase Price, as the case may
be, of the Securities or portions thereof which the Company is obligated to
purchase as of the Purchase Date or Change in Control Purchase Date, as the case
may be, then, unless otherwise agreed in writing with the Company, promptly
after the Business Day following the Purchase Date or Change in Control Purchase
Date, as the case may be, the Trustee shall return any such excess cash or
Common Stock to the Company together with interest, if any, thereon (subject to
the provisions of Section 606).
(I) By adding the following Article 13 to the Indenture:
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
Section 1301. CONVERSION PRIVILEGE.
A Holder of a Security may convert such Security into Common Stock at
any time during the period stated in paragraph 8 of the Securities. The number
of shares of Common Stock issuable upon conversion of a Security per $1,000 of
Principal Amount at Maturity thereof (the "Conversion Rate") shall be that set
forth in paragraph 8 in the Securities, subject to adjustment as herein set
forth. A Holder may convert a portion of the Principal Amount at Maturity of a
Security if the portion is $1,000 or an integral multiple of $1,000. Provisions
24
of this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security.
"Average Sale Price" means the average of the Sale Prices of the Common
Stock for the shorter of
(i) 30 consecutive trading days ending on the last full
trading day prior to the Time of Determination with respect to the
rights, warrants or options or distribution in respect of which the
Average Sale Price is being calculated, or
(ii) the period (x) commencing on the date next succeeding the
first public announcement of (a) the issuance of rights, warrants or
options or (b) the distribution, in each case, in respect of which the
Average Sale Price is being calculated and (y) proceeding through the
last full trading day prior to the Time of Determination with respect
to the rights, warrants or options or distribution in respect of which
the Average Sale Price is being calculated (excluding days within such
period, if any, which are not trading days), or
(iii) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time with respect to the next preceding (a)
issuance of rights, warrants or options or (b) distribution, in each
case, for which an adjustment is required by the provisions of Section
1306(4), 1307 or 1308 and (y) proceeding through the last full trading
day prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the Average
Sale Price is being calculated (excluding days within such period, if
any, which are not trading days).
In the event that the Ex-Dividend Time (or in the case of a
subdivision, combination or reclassification, the effective date with respect
thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 1306(1), (2), (3) or (5) applies occurs during
the period applicable for calculating the "Average Sale Price" pursuant to the
25
definition in the preceding sentence, the "Average Sale Price" shall be
calculated for such period in a manner determined by the Board of Directors to
reflect the impact of such dividend, subdivision, combination or
reclassification on the Sale Price of the Common Stock during such period.
"Time of Determination" means the time and date of the earlier of (i)
the determination of stockholders entitled to receive rights, warrants or
options or a distribution, in each case, to which Section 1307 or 1308 applies
and (ii) the time ("Ex-Dividend Time") immediately prior to the commencement of
"ex-dividend" trading for such rights, warrants or options or distribution on
the New York Stock Exchange or such other national or regional exchange or
market on which the Common Stock are then listed or quoted.
Section 1302. CONVERSION PROCEDURE.
To convert a Security a Holder must satisfy the requirements in
paragraph 8 of the Securities. The first Business Day on which the Holder
satisfies all those requirements is the conversion date (the "Conversion Date").
As soon as practicable after the Conversion Date, the Company shall deliver to
the Holder, through the Conversion Agent, a certificate for the number of full
shares of Common Stock issuable upon the conversion and cash in lieu of any
fractional share determined pursuant to Section 1303. The person in whose name
the certificate is registered shall be treated as a shareholder of record on and
after the next Business Day following the Conversion Date. Upon conversion or
exchange of a Security, such person shall no longer be a Holder of such
Security.
No payment or adjustment will be made for dividends on, or other
distributions with respect to, any Common Stock except as provided in this
Article 13. On conversion of a Security, that portion of accrued Original Issue
Discount attributable to the period from the Issue Date of the Security through
and including the Conversion Date with respect to the converted Security shall
not be cancelled, extinguished or forfeited, but rather shall be deemed to be
paid in full to the Holder thereof through delivery of the Common Stock
(together with the cash payment, if any, in lieu of fractional shares pursuant
26
to Section 1303) for the Security being converted pursuant to the provisions
hereof; and the fair market value of such Common Stock (together with any such
cash payment in lieu of fractional shares) shall be treated as issued, to the
extent thereof, first in exchange for Original Issue Discount accrued through
and including the Conversion Date, and the balance, if any, of such fair market
value of such Common Stock (and any such cash payment) shall be treated as
issued for the Issue Price of the Security being converted pursuant to the
provisions hereof. If the Holder converts more than one Security at the same
time, the number of shares of Common Stock issuable upon the conversion shall be
based on the total Principal Amount at Maturity of the Securities converted.
If the last day on which a Security may be converted is not a Business
Day, the Security may be surrendered on the next succeeding day that is a
Business Day.
Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Security in an authorized denomination equal in Principal Amount at Maturity
to the unconverted portion of the Security surrendered.
A Holder may surrender for conversion a Security called for redemption
at any time prior to the close of business on the second Business Day prior to
any Redemption Date, even if it is not otherwise convertible at such time. A
Security for which a Holder has delivered a Purchase Notice or a Change in
Control Purchase Notice as described above requiring the Company to purchase the
Security may be surrendered for conversion only if such notice is withdrawn in a
timely manner in accordance with the terms of this Indenture.
The Conversion Rate will not be adjusted for accrued Original Issue
Discount. A certificate for the number of full shares of Common Stock into which
any Security is converted, together with any cash payment for fractional shares,
will be delivered through the Conversion Agent as soon as practicable following
the Conversion Date.
Section 1303. FRACTIONAL SHARES.
Securityholders will not receive a fractional share upon conversion of
a Security. Instead, the Holder will receive cash for the current market value
of the fractional share. The current market value of a fractional share shall be
determined, to the nearest 1/1,000th of a share, by multiplying the Sale Price,
on the last trading day prior to the Conversion Date, of a full share by the
fractional amount and rounding the product to the nearest whole cent.
Section 1304. TAXES ON CONVERSION.
If a Holder submits a Security for conversion, the Company shall pay
any documentary, stamp or similar issue or transfer tax due on the issue of
Common Stock upon the conversion. However, the Holder shall pay any such tax
which is due because the Holder requests the shares to be issued in a name other
27
than the Holder's name. The Conversion Agent may refuse to deliver the
certificates representing the Common Stock being issued in a name other than the
Holder's name until the Conversion Agent receives a sum sufficient to pay any
tax which will be due because the shares are to be issued in a name other than
the Holder's name. Nothing herein shall preclude any tax withholding required by
law or regulations. Nothing in this Section 1304 shall be deemed to limit the
provisions of Section 1007 and, in the event of a conflict between such
sections, the provisions of Section 1007 shall govern.
Section 1305. COMPANY TO PROVIDE AND RESERVE STOCK.
The Company shall, as of the date hereof and prior to issuance of any
equity securities pursuant to this Article 13, and from time to time as may be
necessary, reserve out of its authorized but unissued Common Stock a sufficient
number of shares of Common Stock which may be required to permit the conversion
of the Securities if such Securities were converted on any date. All Common
Stock delivered upon conversion of the Securities shall be newly issued shares
or treasury shares, shall be duly and validly issued and fully paid and
nonassessable, and shall be free from preemptive rights and free of any lien or
adverse claim. The Company will comply with all securities and corporate laws,
rules and regulations, including all Liberian laws, rules and regulations,
regulating the offer and delivery of Common Stock upon conversion of Securities,
if any, and will list or cause to have quoted such Common Stock on each national
securities exchange or in the over-the-counter market or such other market,
including non-U.S. stock exchanges, on which the Company's outstanding Common
Stock is then listed or quoted.
Section 1306. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK.
If, after the Issue Date of the Securities, the Company:
(1) pays a dividend or makes a distribution on its Common Stock in
Common Stock;
(2) subdivides its outstanding Common Stock into a greater number
of shares;
(3) combines its outstanding shares of Common Stock into a smaller
number of shares;
28
(4) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock (other than Common Stock or
rights, warrants or options for its Capital Stock); or
(5) issues by reclassification of its Common Stock any shares of
its Capital Stock (other than rights, warrants or options for
its Capital Stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company which such Holder would have owned immediately following such action if
such Holder had converted the Security immediately prior to such action.
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares of two or more classes of Capital Stock of the
Company, the Conversion Rate shall thereafter be subject to adjustment upon the
occurrence of an action taken with respect to any such class of Capital Stock as
is contemplated by this Article 13 with respect to the Common Stock, on terms
comparable to those applicable to Common Stock in this Article 13.
Section 1307. ADJUSTMENT FOR RIGHTS ISSUE.
If after the Issue Date of the Securities, the Company distributes any
rights, warrants or options to all holders of its Common Stock entitling them,
for a period expiring within 60 days after the record date for such
distribution, to purchase Common Stock at a price per share less than the
Average Sale Price as of the Time of Determination, the Conversion Rate shall be
adjusted in accordance with the formula:
R' = R x (O + N)
-------
(O + (N x P)/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
29
O = the number of shares of Common Stock
outstanding on the record date for the
distribution to which this Section 1307 is
being applied.
N = the number of additional shares of Common
Stock offered pursuant to the distribution.
P = the offering price per share of the
additional shares.
M = the Average Sale Price, minus, in the case of
(i) a distribution to which Section 1306(4)
applies or (ii) a distribution to which Section
1308 applies, for which, in each case, (x) the
record date shall occur on or before the record
date for the distribution to which this Section
1307 applies and (y) the Ex-Dividend Time shall
occur on or after the date of the Time of
Determination for the distribution to which
this Section 1307 applies, the fair market
value (on the record date for the distribution
to which this Section 1307 applies) of the
(1) Capital Stock of the Company distributed
in respect of each share of Common Stock
in such Section 1306(4) distribution and
(2) assets of the Company or debt securities
or any rights, warrants or options to
purchase securities of the Company
distributed in respect of each share of
Common Stock in such Section 1308
distribution.
The Board of Directors shall reasonably determine fair market values
for the purposes of this Section 1307, except as Section 1308 otherwise provides
in the case of a spin-off.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights, warrants
or options to which this Section 1307 applies. If all of the Common Stock
subject to such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the Conversion Rate shall promptly be
readjusted to the Conversion Rate which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options been made on
the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
30
No adjustment shall be made under this Section 1307 if the application
of the formula stated above in this Section 1307 would result in a value of R'
that is equal to or less than the value of R.
Section 1308. ADJUSTMENT FOR OTHER DISTRIBUTIONS.
If, after the Issue Date of the Securities, the Company distributes to
all holders of its Common Stock any of its assets (including Capital Stock of
any of its subsidiaries), or debt securities or any rights, warrants or options
to purchase securities of the Company (including securities or cash, but
excluding (x) distributions of Capital Stock referred to in Section 1306 and
distributions of rights, warrants or options referred to in Section 1307 and (y)
cash dividends or other cash distributions that are paid out of consolidated
current net earnings or earnings retained in the business as shown on the books
of the Company unless such cash dividends or other cash distributions are
Extraordinary Cash Dividends) the Conversion Rate shall be adjusted, subject to
the provisions of the last paragraph of this Section 1308, in accordance with
the formula:
R' = R X M
-----
M-F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case
of a distribution to which Section 1306(4)
applies, for which (i) the record date shall
occur on or before the record date for the
distribution to which this Section 1308
applies and (ii) the Ex-Dividend Time shall
occur on or after the date of the Time of
Determination for the distribution to which
this Section 1308 applies, the fair market
value (on the record date for the
distribution to which this Section 1308
applies) of any Capital Stock of the Company
distributed in respect of each share of
Common Stock on a per share basis in such
Section 1306(4) distribution.
F = the fair market value (on the record date
for the distribution to which this Section
1308 applies) of the assets, securities,
rights, warrants or options to be
distributed in respect of each share of
Common Stock on a per share basis in the
distribution to which this Section 1308 is
31
being applied (including, in the case of
cash dividends or other cash distributions
giving rise to an adjustment, all such cash
distributed concurrently).
The Board of Directors shall reasonably determine fair market values
for the purposes of this Section 1308, except that in respect of a dividend or
other distribution of shares of Capital Stock of any class or series, or similar
equity interests, of or relating to a Subsidiary or other business unit,
division or operation of the Company (a "Spin-off"), the fair market value of
the securities to be distributed shall equal the average of the Sale Prices of
those securities for the five consecutive trading days commencing on and
including the sixth day of trading of those securities after the effectiveness
of the Spin-off and the Average Sale Price shall mean the average of the Sale
Prices for the Common Stock for the same five trading days. In the event,
however, that a bona fide underwritten initial public offering to the public
generally of the securities in the Spin-off occurs simultaneously with the
Spin-off, the fair market value of the securities distributed in the Spin-off
shall mean the initial public offering price of such securities and the Average
Sale Price shall mean the Sale Price for the Common Stock on the same trading
day.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 1308 applies, except that an adjustment related to a Spin-off
shall become effective at the earlier to occur of (i) six trading days after the
effective date of the Spin-off and (ii) the initial public offering of the
securities distributed in the Spin-off. If any Holder exercises its conversion
right with respect to its Securities during the six trading days after the
effective date of the Spin-off, the Company shall issue Common Stock to such
Holder at the end of such six day period based on the Conversion Rate in
existence on the date of exercise or the Conversion Rate in existence at the end
of the six day period, whichever results in the Holder receiving more shares of
Common Stock upon conversion.
For purposes of this Section 1308, the term "Extraordinary Cash
Dividend" shall mean any cash dividend with respect to the Common Stock the
amount of which, together with the aggregate amount of cash dividends on the
Common Stock to be aggregated with such cash dividend in accordance with the
provisions of this paragraph, equals or exceeds the threshold percentage set
forth in the following paragraph. For purposes of the following paragraph, the
32
"Measurement Period" with respect to a cash dividend on the Common Stock shall
mean the 365 consecutive day period ending on the date prior to the Ex-Dividend
Time with respect to such cash dividend, and the "Relevant Cash Dividends" with
respect to a cash dividend on the Common Stock shall mean the cash dividends on
the Common Stock with Ex-Dividend Times occurring in the Measurement Period.
If, upon the date prior to the Ex-Dividend Time with respect to a cash
dividend on the Common Stock, the aggregate amount of such cash dividend
together with the amounts of all Relevant Cash Dividends equals or exceeds on a
per share basis 5% of the Sale Price of the Common Stock on the last trading day
preceding the date of declaration by the Board of Directors of the cash dividend
with respect to which this provision is being applied, then such cash dividend
together with all Relevant Cash Dividends, shall be deemed to be an
Extraordinary Cash Dividend and for purposes of applying the formula set forth
above in this Section 1308, the value of "F" shall be equal to (y) the aggregate
amount of such cash dividend together with the amount of all Relevant Cash
Dividends, minus (z) the aggregate amount of all Relevant Cash Dividends for
which a prior adjustment in the Conversion Rate was previously made under this
Section 1308.
In making the determinations required by the preceding paragraph, the
amount of cash dividends paid on a per share basis and the amount of any
Relevant Cash Dividends specified in the preceding paragraph, shall be
appropriately adjusted to reflect the occurrence during such period of any event
described in Section 1306.
In the event that, with respect to any distribution to which this
Section 1308 would otherwise apply, the difference "M-F" as defined in the above
formula is less than $1.00 or "F" is equal to or greater than "M", then the
adjustment provided by this Section 1308 shall not be made and in lieu thereof
the provisions of Section 1308 shall apply to such distribution.
Section 1309. WHEN ADJUSTMENT MAY BE DEFERRED.
No adjustment in the Conversion Rate need be made unless the adjustment
would require an increase or decrease of at least 1% in the Conversion Rate. Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment.
All calculations under this Article 13 shall be made to the nearest
cent or to the nearest 1/1,000th of a share, as the case may be.
33
Section 1310. WHEN NO ADJUSTMENT REQUIRED.
No adjustment need be made for a transaction referred to in Section
1306, 1307, 1308 or 1314 if Securityholders are to participate in the
transaction without conversion on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of the basis and notice
on which holders of Common Stock participate in the transaction and the
Securityholder is not economically harmed by such transaction and the failure to
make an adjustment. Such participation by Securityholders may include
participation in the transaction upon conversion of their Security by the
Securityholder provided that an adjustment shall be made at such time as the
Securityholder is not entitled to participate on the basis described in the
prior sentence. No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan in the ordinary course of business for reinvestment
of dividends or interest.
No adjustment need be made for a change in the par value or no par
value of the Common Stock.
To the extent the Securities become convertible pursuant to this
Article 13 in whole or in part into cash, no adjustment need be made thereafter
as to the cash. Interest will not accrue on the cash.
Section 1311. NOTICE OF ADJUSTMENT.
Whenever the Conversion Rate is adjusted, the Company shall promptly
mail to Securityholders a notice of the adjustment and issue a press release in
a commercially reasonable manner describing such adjustment. The Company shall
file with the Trustee and the Conversion Agent such notice and a certificate
from the Company's independent public accountants (or, if the independent public
accountants are unwilling to do so, the Company's Chief Financial Officer)
briefly stating the facts requiring the adjustment and the manner of computing
it. Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate except to exhibit the same
to any Holder desiring inspection thereof.
Section 1312. VOLUNTARY INCREASE.
The Company from time to time may increase the Conversion Rate by any
amount for any period of time. If the Conversion Rate is increased, it must be
increased the same amount for all Holders of Securities for the same period of
time. Whenever the Conversion Rate is increased, the Company shall mail to
Securityholders and file with the Trustee and the Conversion Agent a notice of
the increase and issue a press release in a commercially reasonable manner
describing such increase. The Company shall mail the notice at least 20 Business
34
Days before the date the increased Conversion Rate takes effect. The notice
shall state the increased Conversion Rate, the period it will be in effect and
the material tax and legal ramifications of the increased Conversion Rate.
Section 1313. NOTICE OF CERTAIN TRANSACTIONS.
If:
(1) the Company takes any action that would require an
adjustment in the Conversion Rate pursuant to Section
1306, 1307 or 1308 (unless no adjustment is to occur
pursuant to Section 1310); or
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 1314; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with
the Trustee and the Conversion Agent a notice stating the
proposed record date for a dividend or distribution or the
proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share
exchange, transfer, liquidation or dissolution. The Company
shall file and mail the notice at least 15 days before such
date. Failure to file or mail the notice or any defect in it
shall not affect the validity of the transaction.
Section 1314. REORGANIZATION OF COMPANY; SPECIAL DISTRIBUTIONS.
If the Company is a party to a transaction subject to Sections 801 and
802 (other than a sale of all or substantially all of the assets of the Company
in a transaction in which the holders of Common Stock immediately prior to such
transaction do not receive securities, cash or other assets of the Company or
any other person) or a merger or binding share exchange pursuant to which the
shares of Common Stock would be converted into cash, securities or other
property or assets, the Securities may be surrendered for conversion at any time
from and after the date which is 15 days prior to the anticipated effective date
of the transaction until 15 days after the actual date of such transaction and,
at the effective time, the right to convert a Security into shares of Common
35
Stock will be changed into a right to convert it into the kind and amount of
cash, securities or other property of the Company or another person which the
Holder would have received if the Holder had converted the Holder's Security
immediately prior to the transaction. The person obligated to deliver
securities, cash or other assets upon conversion of Securities shall enter into
a supplemental indenture confirming the effect of this Section 1314 and
otherwise assuming all obligations under the Indenture. If the issuer of
securities deliverable upon conversion of Securities is an Affiliate of the
successor Company, that issuer shall join in the supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had converted the
Security immediately before the effective date of the transaction, assuming (to
the extent applicable) that such Holder (i) was not a constituent person or an
Affiliate of a constituent person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated alike with the plurality of non-
electing Holders. The supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practical to the adjustments provided
for in this Article 13. The successor Company shall mail to Securityholders a
notice briefly describing the supplemental indenture.
If this Section applies, neither Section 1306 nor 1307 shall apply so
long as such non-application is fair to the Holders.
If the Company makes a distribution to all holders of its Common Stock
of any of its assets, or debt securities or any rights, warrants or options to
purchase securities of the Company that, but for the provisions of the last
paragraph of Section 1308, would otherwise result in an adjustment in the
Conversion Rate pursuant to the provisions of Section 1308, then, from and after
the record date for determining the holders of Common Stock entitled to receive
the distribution, a Holder of a Security that converts such Security in
accordance with the provisions of this Indenture shall upon such conversion be
entitled to receive, in addition to the shares of Common Stock into which the
Security is convertible, the kind and amount of securities, cash or other assets
comprising the distribution that such Holder would have received if such Holder
had converted the Security immediately prior to the record date for determining
the holders of Common Stock entitled to receive the distribution.
36
Section 1315. COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board of Directors must make
pursuant to Section 1303, 1306, 1307, 1308, 1309, 1310, 1314 or 1317 is
conclusive, absent manifest error.
Section 1316. TRUSTEE'S ADJUSTMENT DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this
Article 13 should be made, how it should be made or what it should be. The
Trustee has no duty to determine whether a supplemental indenture under Section
1314 need be entered into or whether any provisions of any supplemental
indenture are correct. The Trustee shall not be accountable for and makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Securities. The Trustee shall not be responsible for the
Company's failure to comply with this Article 13. Each Paying Agent and
Conversion Agent shall have the same protection under this Section 1316 as the
Trustee.
Section 1317. SIMULTANEOUS ADJUSTMENTS.
In the event that this Article 13 requires adjustments to the
Conversion Rate under more than one of Sections 1306, 1307 or 1308, and the
record dates for the distributions giving rise to such adjustments shall occur
on the same date, then such adjustments shall be made by applying, first, the
provisions of Section 1306, second, the provisions of Section 1308 and, third,
the provisions of Section 1307. In the event that any one of such Sections
requires that more than one adjustment be made, the adjustments shall be made in
the order which is the most beneficial to the Holders.
Section 1318. SUCCESSIVE ADJUSTMENTS.
After an adjustment to the Conversion Rate under this Article 13, any
subsequent event requiring an adjustment under this Article 13 shall cause an
adjustment to the Conversion Rate as so adjusted.
(J) By amending the table of contents of the Basic Indenture
to reflect the additions described in subsections (B) through (I) of this
Section 1.
SECTION 2. Section 1006 shall be inapplicable to any term,
provision or condition of any covenant established pursuant to this Indenture
and the Securities as contemplated by Section 301 of the Indenture in respect of
any such term, provision or covenant which under Article Nine of the Indenture
37
cannot be modified without the consent of the Holder of each outstanding
Security affected.
SECTION 3. The Basic Indenture, as supplemented and amended by
this Tenth Supplemental Indenture, is in all respects ratified and confirmed,
and the Basic Indenture and this Tenth Supplemental Indenture shall be read,
taken and construed as one and the same instrument. All provisions included in
this Tenth Supplemental Indenture supersede any similar provisions included in
the Basic Indenture unless not permitted by law.
SECTION 4. If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in this
Tenth Supplemental Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
SECTION 5. All covenants and agreements in this Tenth
Supplemental Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 6. In case any provision in this Tenth Supplemental
Indenture or in the LYONs shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions (or of the
other series of Securities) shall not in any way be affected or impaired
thereby.
SECTION 7. Nothing in this Tenth Supplemental Indenture,
expressed or implied, shall give to any Person, other than the parties hereto
and their successors hereunder, and the Holders of the LYONs any benefit or any
legal or equitable right, remedy or claim under this Tenth Supplemental
Indenture.
SECTION 8. This Tenth Supplemental Indenture and each LYON
shall be deemed to a contract made under the laws of the State of New York and
this Tenth Supplemental Indenture and each such LYON shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9. All terms used in this Tenth Supplemental Indenture
not otherwise defined herein that are defined in the Basic Indenture shall have
the meanings set forth therein.
SECTION 10. This Tenth Supplemental Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
38
SECTION 11. Section 403 and Section 1004 of the Basic
Indenture are not applicable to the LYONs. In addition, Section 401 of the Basic
Indenture is hereby amended solely with respect to the LYONs by (1) deleting in
clause 1(B)(i) the word "or" and substituting the word "and the Company", (2)
deleting in clause 1(B) all of clause (ii) and the words "(iii) if, redeemable
at the option of the Company, are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and
the Company, in the case of (i), (ii) or (iii) above," and (3) deleting in
clause 1(B) the words "referred to in clause (i), (ii) or (iii) of subparagraph
(B)".
39
IN WITNESS WHEREOF, the parties hereto have caused this Tenth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
ROYAL CARIBBEAN CRUISES LTD.
By: /s/ BONNIE BIUMI
-----------------------------------
Name: Bonnie Biumi
Title: V.P. - Treasurer
THE BANK OF NEW YORK, as Trustee,
By: /s/ DEREK KETTEL
-----------------------------------
Name: Derek Kettel
Title: Agent
40
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of January, 2001, before me personally came Bonnie Biumi, to me
known, who, being by me duly sworn, did depose and say that she is V.P. -
Treasurer of ROYAL CARIBBEAN CRUISES LTD., one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ KENNETH S. BROWD
----------------------------------
Name: Keneth S. Browd
Notary Public
State of [SEAL]
My Commission expires on
41
STATE OF FLORIDA )
) ss.:
COUNTY OF DUVAL )
On the 2nd day of February, 2001, before me personally came Derek Kettel, to me
known, who, being by me duly sworn, did depose and say that he is an Agent of
THE BANK OF NEW YORK, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
/s/ CHRISTIE M. LEPPERT
----------------------------------
Name: Christie M. Leppert
Notary Public
State of [SEAL]
My Commission expires on
42
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘20-F’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 2/2/11 | | 8 | | 17 | | | 4 |
| | 2/2/05 | | 8 | | 17 | | | 3 |
| Filed on: | | 4/17/01 |
| | 2/2/01 | | 1 | | 2 |
| For Period End: | | 12/31/00 | | | | | | | 6-K |
| | 7/15/94 | | 1 | | 2 |
| List all Filings |
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