EXHIBIT 4.2
ROYAL CARIBBEAN CRUISES LTD., as Issuer
and
THE BANK OF NEW YORK, as Trustee
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FORM OF
ELEVENTH SUPPLEMENTAL INDENTURE
Dated as of , 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
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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 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
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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:
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
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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
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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 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,
(ii) the information required by Section 1110(e),
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(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.
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
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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 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
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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 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
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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;
(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);
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(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 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
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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:
(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
17
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 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;
18
(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;
(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
19
(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 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
20
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.
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,
21
(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.
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
22
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.
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
23
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 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
24
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 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.
25
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 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
26
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 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.
27
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;
(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
28
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.
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.
29
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.
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,
30
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
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
31
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 "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
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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.
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
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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 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.
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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 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
35
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.
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.
36
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
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.
37
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.
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)".
38
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:_______________________________
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On the _______ day of ______________, 2001, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that he is ___________________ 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.
____________________________
Name:
Notary Public
State of
My Commission expires on
STATE OF )
) ss.:
COUNTY OF )
On the _______ day of ______________, 2001, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that he/she is ___________________ of THE BANK OF NEW YORK, one
of the corporations described in and which executed the foregoing instrument;
that he/she 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/she signed his/her name
thereto by like authority.
_______________________________
Name:
Notary Public
State of
My Commission expires on
