EXHIBIT 2.12
ROYAL CARIBBEAN CRUISES LTD., as Issuer
and
THE BANK OF NEW YORK, as Trustee
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ELEVENTH SUPPLEMENTAL INDENTURE
Dated as of May 18, 2001
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ZERO COUPON CONVERTIBLE NOTES
Supplemental to Indenture dated as of July 15, 1994
ELEVENTH SUPPLEMENTAL INDENTURE, dated as of May 18, 2001 (the
"Eleventh 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
Eleventh 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 Zero Coupon
Convertible Notes due 2021 (such securities being referred to herein as the
"Convertible Note" or "Convertible Notes" 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 Eleventh 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
Eleventh 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 Convertible Notes, 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, 0000 Xxxxxxxxx Xxx, Xxxxx, Xxxxxxx 00000 and
written notice of said service to the Company, mailed or
delivered to the Company's General Counsel, 0000 Xxxxxxxxx
Xxx, Xxxxx, Xxxxxxx 00000, 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 be
valid personal service upon the Company. Said designation and
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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
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of Default specified in Sections 501(6) or
501(7) involving the Company,"
(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
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(5) reduce the redemption price or change in
control purchase price of any Security, or
(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
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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
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:
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Section 1109. REDEMPTION OF THE CONVERTIBLE NOTES 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 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 May 18, 2004, May 18, 2009
and May 18, 2014 (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 CONVERTIBLE NOTES
PURCHASE DATE PURCHASE PRICE
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May 18, 2004 $450.20
May 18, 2009 $569.31
May 18, 2014 $719.92
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 May 18, 2004,
May 18, 2009 or May 18, 2014, 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
May 18, 2004, May 18, 2009 or May 18, 2014,
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 (stating the
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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
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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 Purchase Notice or written notice of
withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of
Purchase Price for Payment on May 18, 2004, May 18, 2009 or
May 18, 2014. The Securities to be purchased on May 18, 2004,
May 18, 2009 or May 18, 2014 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 May 18, 2004,
May 18, 2009 or May 18, 2014, the manner of payment
selected by the Company,
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(ii) the information required by Section
1110(e),
(iii) if the Purchase Date is May 18, 2004,
May 18, 2009 or May 18, 2014, 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 May 18, 2004, May 18, 2009
and May 18, 2014, 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 May 18,
2004, May 18, 2009 and May 18, 2014, 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.
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If the Company elects to purchase the Securities by
the issuance of Common Stock on May 18, 2004, May 18, 2009 or
May 18, 2014, the Company Notice, as 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 May 18, 2004, May 18, 2009 or May 18,
2014 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
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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.
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 May
18, 2004, May 18, 2009 or May 18, 2014, 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
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determination and will publish such determination on the
Company's Web site on the World Wide Web or a reasonable
equivalent.
(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 May 18, 2004, May 18, 2009 or May 18, 2014, 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;
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(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 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
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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 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 May
18, 2004, May 18, 2009 or May 18, 2014 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 May 18, 2004 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:
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(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 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
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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 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;
-19-
(12) the procedures for withdrawing a Change in
Control Purchase Notice;
(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.
-20-
Any purchase by the Company contemplated pursuant to
the provisions of this Section 1111 shall be consummated by
the delivery of the consideration to 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
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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.
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
-22-
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.
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,
-23-
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.
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.
-24-
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 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"
-25-
pursuant to the 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 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
-26-
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.
-27-
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 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:
-28-
(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;
(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:
-29-
R' = R x (O + N)
-------
(O + (N x P)/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
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
-30-
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.
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
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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
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.
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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 "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.
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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.
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
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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 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.
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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 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,
-36-
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.
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.
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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
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 Eleventh Supplemental Indenture, is in all respects ratified and confirmed,
and the Basic Indenture and this Eleventh Supplemental Indenture shall be read,
taken and construed as one and the same instrument. All provisions included in
this Eleventh 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
Eleventh 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 Eleventh
Supplemental Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 6. In case any provision in this Eleventh Supplemental
Indenture or in the Convertible Notes 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 Eleventh Supplemental Indenture,
expressed or implied, shall give to any Person, other than the parties hereto
and their successors hereunder, and the Holders of the Convertible Notes any
benefit or any legal or equitable right, remedy or claim under this Eleventh
Supplemental Indenture.
SECTION 8. This Eleventh Supplemental Indenture and each
Convertible Note shall be deemed to be a contract made under the laws of the
State of New York and this Eleventh Supplemental Indenture and each such
Convertible Note shall be governed by and construed in accordance with the laws
of the State of New York.
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SECTION 9. All terms used in this Eleventh Supplemental
Indenture not otherwise defined herein that are defined in the Basic Indenture
shall have the meanings set forth therein.
SECTION 10. This Eleventh 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.
SECTION 11. Section 403 and Section 1004 of the Basic
Indenture are not applicable to the Convertible Notes. In addition, Section 401
of the Basic Indenture is hereby amended solely with respect to the Convertible
Notes 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)".
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IN WITNESS WHEREOF, the parties hereto have caused this
Eleventh 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/ XXXXXX XXXXX
----------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee,
By:
----------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this
Eleventh 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:
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee,
By: /s/ XXXXX XXXXXX
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Agent
-00-
XXXXX XX XXXXXXX )
) ss.:
COUNTY OF MIAMI-DADE )
On the 15th day of May, 2001, before me personally came Xxxxxx Xxxxx, to me
known, who, being by me duly sworn, did depose and say that she is VP, 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/ XXXXXXXXX XXXX
-----------------------------------
Name: Xxxxxxxxx Xxxx
Notary Public
State of FLORIDA [SEAL]
My Commission expires on 00-00-00
XXXXX XX XXXXXXX )
) ss.:
COUNTY OF XXXXX )
On the 18th day of May, 2001, before me personally came Xxxxx Xxxxxx, 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/ XXXXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxxxx X. Xxxxxxx
[SEAL]
Notary Public
State of Florida
My Commission #CC935086 expires on September 9, 2004
