REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of ___________, 1997
(this "Agreement"), among Royal Caribbean Cruises Ltd., a
Liberian corporation (the "Company"), X. Xxxxxxxxxx AS., a
Norwegian corporation ("Wilhelmsen"), Cruise Associates, a
Bahamian general partnership ("Cruise Associates"), Monument
Capital Corporation, a Liberian corporation ("Monument"),
Archinav Holdings, Ltd., a Liberian corporation ("Archinav"), and
Overseas Cruiseship, Inc., a Cayman Islands corporation ("OCI"
and, together with Archinav, the "Celebrity Shareholders").
W I T N E S S E T H:
WHEREAS, the Company is a party to a Registration Rights
Agreement, dated February 1, 1993 (the "Existing Agreement"), and
has requested the other parties thereto, Wilhelmsen Cruise
Associates and Monument, to agree, and they have agreed, with the
Company, to make certain amendments to, and to restate the
Existing Agreement providing, among other things, for the grant
of certain registration rights to the Celebrity Shareholders; and
WHEREAS, the Company has agreed to grant to the Celebrity
Shareholders, and the Celebrity Shareholders desire to accept,
certain registration rights as herein provided, all in connection
with acquisition of all of the issued and outstanding capital
stock of Celebrity Cruise Lines, Inc. by the Company from the
Celebrity Shareholders, pursuant to the Stock Purchase Agreement,
dated July 2, 1997, among the Company, Celebrity Cruise Lines,
Inc. and the Celebrity Shareholders.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto hereby agree as
follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) "Common Stock" shall mean the common stock of the
Company, par value $0.01 per share.
(b) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, or any similar federal statute then in
effect, and a reference to a particular section thereof shall be
deemed to include a reference to the comparable section, if any,
of any such similar federal statute.
(c) "Holders" shall mean (i) Wilhelmsen and (ii)
Cruise Associates, in each case together with their respective
affiliates and other transferees who become parties to this
Agreement and the Shareholders Agreement as a "Shareholder"
thereunder, (iii) Monument, (iv) Archinav, (v) OCI and (vi) any
other person holding Registrable Securities who becomes a party
to this Agreement.
(d) "Registrable Securities" shall mean (i) shares of
Common Stock held by the Holders as of the date hereof, (ii) all
shares of capital stock that are issued in respect of, in
exchange for or in substitution of any shares of Common Stock by
reason of any reorganization, recapitalization, reclassification,
merger, consolidation, spin-off, partial or complete liquidation,
stock dividend, stock split, sale of assets, distribution to
shareholders or combination of the shares of Common Stock or any
other change in the Company's capital structure and (iii) any
securities of the Company held by the Holders convertible into,
or exercisable or exchangeable for, any shares of Common Stock as
of the date hereof.
As to any particular Registrable Securities, once issued
such securities shall cease to be Registrable Securities when (w)
such securities shall have been registered under the Securities
Act, and the registration statement with respect to the sale of
such securities shall have become effective under the Securities
Act and such securities shall have been disposed of pursuant to
such effective registration statement, (x) such securities shall
have been distributed pursuant to Rule 144 (or any similar
provision which replaces Rule 144) under the Securities Act, (y)
such securities shall have been otherwise transferred, if new
certificates or other evidences of ownership for them shall not
bear a legend restricting further transfer and shall not be
subject to any stop transfer order or other restrictions on
transfer delivered or imposed by the Company and subsequent
disposition of such securities shall not require registration or
qualification of such securities under the Securities Act or any
state securities laws then in force or (z) such securities shall
cease to be outstanding.
(e) "Registration Expenses" shall mean all expenses
incident to the Company's performance of or compliance with this
Agreement, including, without limitation, all filing fees and
expenses of the SEC and any relevant stock exchange or quotation
system such as the National Association of Securities Dealers,
Inc., registration fees and expenses of compliance with
securities or blue sky laws (including, without limitation,
reasonable fees and disbursements of counsel for the underwriters
in connection with blue sky qualifications of the Registrable
Securities), printing expenses, messenger and delivery expenses,
the fees and expenses incurred in connection with the listing of
the securities to be registered on each securities exchange or
national market system on which similar securities issued by the
Company are then listed, fees and disbursements of counsel for
the Company and all independent certified public accountants
(including the expenses of any annual audit, special audit and
"cold comfort" letters required by or incident to such
performance and compliance), securities laws liability insurance
(if the Company so desires) the fees and disbursements of
underwriters customarily paid by issuers or sellers of securities
(other than commissions and discounts), the reasonable fees of
one counsel retained in connection with each such registration by
the Holders of a majority of the Registrable Securities being
registered, the reasonable fees and expenses of any special
experts retained by the Company in connection with such
registration, and fees and expenses of other persons retained by
the Company (but not including any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale
of Registrable Securities by Holders of such Registrable
Securities).
(f) "Securities Act" shall mean the Securities Act of
1933, as amended, or any similar federal statute then in effect,
and a reference to a particular section thereof shall be deemed
to include a reference to the comparable section, if any, of any
such similar federal statute.
(g) "SEC" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering
the Securities Act or the Exchange Act.
(h) "Shareholders Agreement" shall mean that certain
Shareholders Agreement dated as of February 1, 1993, between
Wilhelmsen and Cruise Associates, as the same may have been or
may be hereafter amended, modified, supplemented or restated.
(2) Other Definitions.
Defined in
Term Section
Agreement Preamble
Archinav Preamble
Celebrity Shareholders Preamble
Company Preamble
Cruise Associates Preamble
Demanding Holder Section 3(a)
Existing Agreement Recitals
Indemnified Person Section 7(a)
Indemnified Persons Section 7(b)
Inspectors Section 6(i)
Monument Preamble
OCI Preamble
Wilhelmsen Preamble
3. Demand Registration.
(a) Request for Registration. Upon the written
request of Wilhelmsen, Cruise Associates or Monument, or, after
the first anniversary of the date hereof, Archinav or OCI, as the
case may be (the "Demanding Holder"), requesting that the Company
effect the registration under the Securities Act of all or part
of the Demanding Holder's Registrable Securities, which
Registrable Securities represent not less than 3% of the
Registrable Securities then outstanding in the case of Wilhelmsen
and Cruise Associates, 500,000 shares of Registrable Securities
in the case of Monument and 2,000,000 shares of Registrable
Securities in the case of Archinav and OCI, and specifying the
underwriter which has indicated an interest in purchasing the
specified Registrable Securities to be distributed on a firm
commitment underwritten basis, the Company will promptly give
written notice of such requested registration to the other
Holders at least 30 days prior to the anticipated filing date of
the registration statement relating to such registration, and
thereupon will use its best efforts to effect, as expeditiously
as possible, for the registration under the Securities Act of:
(i) the Registrable Securities which the Company has
been so requested to register by the Demanding
Holder: and
(ii) all other Registrable Securities of the same class
as those requested to be registered by the
Demanding Holder which the Company has been
requested to register by any other Holders by
written request received by the Company within 20
days after the giving of such written notice by
the Company (which request shall contain such
information as is deemed necessary by the Company
to permit the registration and disposition of the
Registrable Securities so requested to be
registered by such other Holders);
provided, however, that (A) the Company shall not be obligated to
file a registration statement relating to a registration request
under this Section 3 (other than on Form F-3, or Form S-3 if it
is then available or any similar short-form registration
statement) within a period of ninety days after the effective
date of any other registration statement of the Company other
than registration statements on Form F-3 or Form S-3 if it is
then available (or any similar short-form registration statement)
or any successor or similar forms and (B) (i) if Wilhelmsen is
the Demanding Holder, it shall not be entitled to more than five
requests for registration pursuant to this Section 3, (ii) if
Cruise Associates is the Demanding Holder, it shall not be
entitled to more than five requests for registration pursuant to
this Section 3, (iii) if Monument is the Demanding Holder, it
shall not be entitled to more than one request for registration
pursuant to this Section 3, (iv) if Archinav is the Demanding
Holder, it shall not be entitled to more than one request for
registration pursuant to this Section 3 and (v) if OCI is the
Demanding Holder, it shall not be entitled to more than one
request for registration pursuant to this Section 3 (in each
case, except as otherwise provided herein). In the event a
registration requested pursuant to this Section 3 fails to become
effective (other than as a result of a revocation by the
Demanding Holder), the request for registration shall be deemed
not to have been made for purposes of this Section 3(a). If a
registration has been requested pursuant to this Section 3 by
either Wilhelmsen or Cruise Associates at the same time as, or
within five days after, a registration is requested by Monument,
the registration requested by Wilhelmsen or Cruise Associates
shall be effected pursuant to this Section 4 and the registration
requested by Monument shall be deemed not to have been made for
purposes of this Section 3(a).
Unless the Demanding Holder shall otherwise consent in
writing, no other person or entity, other than the Company or
another Holder, shall be permitted to offer any securities under
any registration pursuant to this Section 3. Promptly after the
expiration of the 20-day period referred to in subsection (ii)
above, the Company will notify all the Holders to be included in
the registration of the other Holders and the amount of
Registrable Securities requested to be included therein by each
Holder. Any Holder requesting a registration pursuant to this
Section 4 may, at any time prior to the effective date of the
registration statement relating to such registration, revoke such
request by providing a written notice to the Company revoking
such request signed by such Holder.
The foregoing notwithstanding, the Company shall have the
right to delay the filing of a registration statement of a
Demanding Holder in each of the following situations for the
respective periods indicated:
(i) the Company's Board of Directors authorizes an
underwritten public offering of securities for its
own account and, subject to the provisions of
Section 4, for the Holders, provided that the
delay shall not exceed 240 days;
(ii) the Company is a party to an agreement with
underwriters of a prior public offering
restricting the registration and public sale of
Common Stock provided that the delay shall not
exceed 180 days; and
(iii) the Company, as determined in good faith by its
Chief Executive Officer, Chief Financial Officer
or the Board of Directors or a Committee thereof,
desires to avoid disclosure of any corporate
disclosure that the Company is not otherwise
obligated to disclose, provided the delay does not
exceed 60 days.
(b) Registration Statement Form. If a registration
requested pursuant to this Section 3 which is proposed by the
Company to be effected by the filing of a registration statement
on Form F-3, or Form S-3 if it is then available (or any
successor or similar short-form registration statement), and if
the managing underwriter shall advise the Company in writing
that, in its opinion, the use of another form of registration
statement is of material importance to the success of such
proposed offering, then such registration shall be effected on
such other form.
(c) Expenses. The Company will pay all Registration
Expenses in connection with (i) five registrations requested by
Wilhelmsen, (ii) five registrations requested by Cruise
Associates, (iii) one registration requested by Monument, (iv)
one registration requested by Archinav and (v) one registration
requested by OCI (in each case pursuant to this Section 3). The
Company shall not be liable for Registration Expenses in
connection with a registration that shall not have become
effective due to a revocation by the Demanding Holder and such
expenses shall be borne by the Demanding Holder. In such event,
the Company's obligation to pay all Registration Expenses in
connection with (i) five registrations requested by Wilhelmsen,
(ii) five registrations requested by Cruise Associates, (iii) one
registration requested by Monument, (iv) one registration
requested by Archinav and (v) one registration requested by OCI
(in each case pursuant to this Section 3) shall continue. Each
Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Securities pursuant to a registration
statement requested pursuant to this Section 3.
(d) Effective Registration Statement. A registration
requested pursuant to this Section 3 will not be deemed to have
been effected unless the registration statement relating thereto
has become effective under the Securities Act; provided, however,
that if, after such registration statement has become effective,
the offering of Registrable Securities pursuant to such
registration is interfered with by any stop order, injunction or
other order or requirement of the SEC or other governmental
agency or court, such registration will be deemed not to have
been effected.
(e) Selection of Underwriters. The Demanding Holder,
with the consent of the Company (which consent shall not be
unreasonably withheld), shall have the right to select the
investment banker and manager or co-managers that will administer
the offering of Registrable Securities requested to be registered
pursuant to this Section 3.
(f) Pro Rata Participation in Requested Registrations.
If the managing underwriter shall advise the Company in writing
that, in its opinion, the number of equity securities requested
to be included in such registration (including securities which
the Company requests to- be included which are not Registrable
Securities) exceeds the largest number of securities which can be
sold without having an adverse effect on such offering, including
the price at which such securities can be sold, the Company will
include in such registration (i) first, all Registrable
Securities requested to be included in such registration by the
Holders (provided, however, that if the number of such
Registrable Securities exceeds the number which the Company has
been advised can be sold in such offering without having the
adverse effect referred to above, the number of such Registrable
Securities included in such registration shall be allocated pro
rata among the Holders requesting registration on the basis of
the relative number of shares of Registrable Securities each such
Holder has requested to be included in such registration;
provided, further, however, that prior to the proration of
Registrable Securities referred to in this clause (i), the
Demanding Holder shall have the option to increase the number of
Registrable Securities it is seeking to register to a number
which is equal to the greatest number of shares sought to be
included by any other person (including persons controlling,
controlled by or under common control with any such person)) and
(ii) second, to the extent that the number of Registrable
Securities requested to be included in such registration by the
Holders is, in the aggregate, less than the number of securities
which the Company has been advised can be sold in such offering
without having the adverse effect referred to above, the equity
securities proposed to be sold by the Company and any other
person to the extent that the Demanding Holder shall have
consented, pursuant to Section 3(a) hereof, to the inclusion in
such registration of such securities of such other persons
(provided that if the number of securities proposed to be
registered by the Company and such other persons, together with
the number of Registrable Securities to be included in such
registration pursuant to clause (i) of this Section 3(f), exceeds
the number which the Company has been advised can be sold in such
offering without having the adverse effect referred to above, the
number of such securities included in such registration pursuant
to this Section 3(f)(ii) shall be allocated pro rata among the
Company and all such other persons on the basis of the relative
number of securities the Company and each such person has
requested to be included in such registration).
If, due to the allocation procedures set forth in the
foregoing paragraph at least 50% of the Registrable Securities
requested to be registered by the Demanding Holder are not
included in such registration, then the Demanding Holder shall
have the right to require the Company to effect an additional
registration under the Securities Act of all or part of the
Registrable Securities owned by the Demanding Holder in
accordance with the provisions of this Section 3.
4. Incidental Registration.
(a) Right to Include Registrable Securities. If the
Company at any time proposes to register any of its equity
securities under the Securities Act (other than a registration on
Form X-0, X-0 or F-4 or any successor or similar forms and other
than pursuant to a registration under Section 3 hereof), whether
or not for sale for its own account, in a manner which would
permit registration of Registrable Securities for sale to the
public under the Securities Act, it will each such time, subject
to the provisions of Section 4(b) hereof, give prompt written
notice to each Holder of its intention to do so and of each
Holder's rights under this Section 4, at least 30 days prior to
the anticipated filing date of the registration statement
relating to such registration. Such notice shall offer to each
Holder the opportunity to include in such registration statement
such number of Registrable Securities as each such Holder may
request. Upon the written request of any Holder made within 20
days after the receipt of the Company's notice (which request
shall specify the number of Registrable Securities intended to be
disposed of by such Holder and the intended method of disposition
thereof), the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by
each such Holder, to the extent requisite to permit an
underwritten disposition of the Registrable Securities so to be
registered; provided, however, that (x) the Holders requesting to
be included in the Company's registration must sell their
Registrable Securities to the underwriters selected by the
Company on the same terms and conditions as apply to the Company;
and (y) if, at any time after giving written notice of its
intention to register any Registrable Securities pursuant to this
Section 4(a) and prior to the effective date of the registration
statement filed in connection with such registration, the Company
shall determine for any reason not to register its securities,
the Company shall give written notice to each such Holder and,
thereupon, the Company shall be relieved of its obligation to
register any Registrable Securities in connection with such
registration (without prejudice, however, to rights of Holders
under Section 3 hereof). The Holders requesting to be included
in such registration may elect, in writing at any time prior to
the effective date of the registration statement filed in
connection with such registration, not to register such
securities in connection with such registration. No registration
effected under this Section 4 shall relieve the Company of its
obligations to effect registrations upon request of the Demanding
Holder under Section 3 hereof. The Company will pay all
Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this Section 4, and
each Holder shall pay all underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition
of its Registrable Securities pursuant to a registration
statement effected pursuant to this Section 4.
(b) Priority in Incidental Registrations. If the
managing underwriter of a registration effected pursuant to this
Section advises the Company in writing that, in its opinion,
either (y) the number of equity securities (including all
Registrable Securities) which the Company, the Holders and any
other persons intend to include in such registration exceeds the
largest number of securities which can be sold without having an
adverse effect on such offering, including the price at which
such securities can be sold, or (z) the inclusion in such
offering of Registrable Securities would have a material adverse
effect on such offering, then, in either such case, the Company
will include in such registration (i) first, all the securities
the Company proposes to sell for its own account, (ii) second,
all the Registrable Securities each Holder proposes to sell for
its own account (provided, however, that if the number of
Registrable Securities requested to be included in such
registration by the Holders pursuant to Section 4(a) hereof,
together with the number of Registrable Securities to be included
in such registration pursuant to clause (i) of this Section 4(b),
exceeds the number which the Company has been advised can be sold
in such offering without having the adverse effect referred to
above, the number of such Registrable Securities to be included
in such registration by the Holders shall be allocated pro rata
among such Holders on the basis of the relative number of
Registrable Securities each such Holder has requested to be
included in such registration), and (iii) third, to the extent
that the number of equity securities which the Company proposes
to sell for its own account and the Registrable Securities which
the Holders have requested to be included in such registration
pursuant to Section 4(a) hereof is, in the aggregate, less than
the number of securities which the Company has been advised can
be sold in such offering without having the adverse effect
referred to above, the equity securities requested to be sold for
the account of any other persons (provided, however, that if the
number of securities proposed to be registered by such other
persons, together with the number of equity securities to be
included in such registration pursuant to clauses (i) and (ii) of
this Section 4(b), exceeds the number which the Company has been
advised can be sold in such offering without having the adverse
effect referred to above, the number of such securities included
in such registration pursuant to this Section 4(b)(iii) shall be
allocated pro rata among all such other persons on the basis of
the relative number of securities each other person has requested
to be included in such registration).
5. Holdback Agreements.
(a) Registration for Public Sale by Holders. Each
Holder of Registrable Securities agrees, to the extent not
inconsistent with applicable law, and if and to the extent
requested by the managing underwriter of a registration of
Registrable Securities, not to effect any public sale or
distribution, including any sale pursuant to Rule 144 or
Regulation S under the Securities Act, of any Registrable
Securities, and not to effect any such public sale or
distribution of any other equity security of the Company or of
any security convertible into or exchangeable or exercisable for
any equity security of the Company (in each case, other than as
part of such registration) during the 15 days prior to, and for a
period of at least 90 days (or such longer period as each Holder
agrees with the underwriter of such offering) beginning on, the
effective date of such registration statement (except as part of
such registration) provided that each Holder of Registrable
Securities has received written notice of such registration at
least 30 days prior to such effective date.
(b) Restrictions for Public Sale by the Company and
Others. The Company agrees, to the extent not inconsistent with
applicable law, and if and to the extent requested by the
managing underwriter of a registration of Company securities
other than Registrable Securities, (i) not to effect any public
sale or distribution of any of its equity securities or of any
security convertible into or exchangeable or exercisable for any
equity security of the Company (other than any such sale or
distribution for such securities in connection with any merger or
consolidation by the Company or any subsidiary of the Company or
the acquisition by the Company or a subsidiary of the Company of
the capital stock or substantially all the assets of any other
person or in connection with an employee stock option or other
benefit plan) during the 15 days prior to, and for a period of at
least 90 days (or such longer period as the underwriters retained
by the Company may reasonably request) beginning on, the
effective date of such registration statement (except as part of
such registration) and (ii) that any agreement entered into after
the date of this Agreement pursuant to which the Company issues
or agrees to issue any privately placed equity securities shall
contain a provision under which holders of such securities agree
not to effect any public sale or distribution of any such
securities during the period referred to in the foregoing clause
(i), including any public sale by such holders pursuant to Rule
144 or Regulation S under the Securities Act (except as part of
such registration, if permitted); provided, however, that the
provisions of this paragraph (b) shall not prevent the conversion
or exchange of any securities pursuant to their terms into or for
other securities.
6. Registration Procedures.
If and whenever the Company is required to use its best
efforts to effect or cause the registration of any Registrable
Securities under the Securities Act as provided in this
Agreement, the Company will, subject to the last paragraph of
Section 3(a), as expeditiously as possible:
(a) prepare and file with the SEC within 90 days, and
use its best efforts to prepare and so file within 45 days, after
receipt of a request for registration with respect to such
Registrable Securities, a registration statement on any form for
which the Company then qualifies or which counsel for the Company
shall deem appropriate, subject to Section 3(b) hereof, and which
form shall be available for the sale of the Registrable
Securities as part of such registration, and use its best efforts
to cause such registration statement to become effective;
provided, however, that before filing with the SEC a registration
statement or prospectus or any amendments or supplements thereto,
the Company will (i) furnish to one counsel selected by the
Holders of a majority of the Registrable Securities covered by
such registration statement copies of all such documents proposed
to be filed, which documents will be subject to the review of
such counsel, and (ii) notify each Holder of Registrable
Securities covered by such registration statement of any stop
order issued or threatened by the SEC and take all reasonable
actions required to prevent the entry of such stop order or to
remove it if entered;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective for such period as the
underwriters may reasonably request, which period will terminate
when all Registrable Securities covered by such registration
statement have been sold (but not before the expiration of the
90-day period referred to in Section 4(3) of the Securities Act
and Rule 174 thereunder, if applicable), and comply with the
provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during
such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement;
(c) furnish to each Holder and each underwriter, if
any, of Registrable Securities covered by such registration
statement such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as such Holder may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by
such Holder, in conformity with the requirements of the
Securities Act;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky
laws of such jurisdictions as any Holder and underwriter of
Registrable Securities covered by such registration statement
reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such
Holder and each underwriter to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder;
provided, however, that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph
(d), (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any such
jurisdiction;
(e) use its best efforts to cause the Registrable
Securities covered by such registration statement to be
registered with or approved by such other governmental agencies
or authorities as may be necessary by virtue of the business and
operations of the Company to enable the Holder or Holders thereof
to consummate the disposition of such Registrable Securities;
(f) immediately notify each Holder of such Registrable
Securities (i) at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, (ii) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (iii) of the happening of any
event which comes to the Company's attention if as a result of
such event the prospectus included in such registration statement
contains an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading and, in each such
case, the Company will promptly prepare and furnish to such
Holder a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(g) if Registrable Securities are then listed on a
national securities exchange or quoted on a national market
system, use its best efforts to cause all such Registrable
Securities to be listed on such national securities exchange or
quoted on such national market system and on each securities
exchange on which similar securities issued by the Company are
then listed or quoted, and enter into such customary agreements
including a listing application or application for quotation and
indemnification agreement in customary form, provided, however,
that the applicable listing or quotation requirements are
satisfied, and to provide a transfer agent and registrar for such
Registrable Securities covered by such registration statement no
later than the effective date of such registration statement;
(h) enter into such customary agreements (including an
underwriting agreement) and take all such other actions as the
Holders of a majority (by number of shares being sold) of the
Registrable Securities or the underwriters retained by such
Holders reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities, including provision
of customary opinions and indemnification;
(i) make available for inspection by any Holder of
Registrable Securities covered by such registration statement,
any underwriter participating in any disposition pursuant to such
registration statement and amendment thereto, and any attorney,
accountant or other agent retained by any such Holder or
underwriter (collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents and properties of
the Company and its subsidiaries, if any, as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause the officers, directors and employees
of the Company and its subsidiaries to supply all information and
respond to all inquiries reasonably requested by any such
Inspector in connection with such registration statement and
amendments thereto;
(j) use its best efforts to obtain a "cold comfort"
letter from the Company's independent public accountants
addressed to the selling Holders and the underwriters in
customary form and covering such matters of the type customarily
covered by "cold comfort" letters as the Holders of a majority
(by number of shares being sold) of the Registrable Securities or
the underwriters retained by such Holders reasonably request;
(k) otherwise use its best efforts to comply in all
material respects with all applicable rules and regulations of
the SEC, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering a period
of at least twelve months, beginning with the first month after
the effective date of the registration statement and the
effective date of each post-effective amendment thereto (as the
term "effective date" is defined in Rule 158(c) under the
Securities Act), which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(l) not later than the effective date of the
applicable Registration Statement, use its efforts to provide a
CUSIP number for all Registrable Securities, and provide the
applicable transfer agents with printed certificates for the
Registrable Securities which are in a form eligible for deposit
with Depositary Trust Company; and
(m) promptly prior to the filing of any document which
is to be incorporated by reference into the Registration
Statement or the prospectus (after initial filing of the
Registration Statement), provide copies of such document to
counsel to the selling Holders of Registrable Securities and to
the managing underwriters, if any, and make the Company's
representatives available for discussion of such document and
make such changes in such document prior to the filing thereof as
counsel for such selling holders or underwriters may reasonably
request.
It shall be a condition precedent to the obligation of the
Company to take any action pursuant to this Agreement in respect
of the securities which are to be registered at the request of
any Holder of Registrable Securities that such Holder shall
furnish to the Company such information regarding the securities
held by such Holder and the intended method of disposition
thereof as the Company shall reasonably request and as shall be
required in connection with the action taken by the Company.
Each Holder of Registrable Securities agrees that, upon
receipt of any notice from the Company of the happening of any
event of the kind described in Section 6(f) hereof, such Holder
will forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement covering such Registrable
Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(f)
hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Holder's
possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the period
mentioned in Section 6(b) hereof shall be extended by the greater
of (i) one month or (ii) the number of days during the period
from and including the date of the giving of such notice pursuant
to Section 6(f) hereof to and including the date when each Holder
of Registrable Securities covered by such registration statement
shall have received the copies of the supplemented or amended
prospectus contemplated by Section 6(f) hereof. If for any other
reason the effectiveness of any Registration Statement filed
pursuant to Section 3 hereof is suspended or interrupted prior to
the expiration of the time period regarding the maintenance of
the effectiveness of such Registration Statement required by such
Section 3 so that Registrable Securities may not be sold pursuant
thereto, the applicable time period shall be extended by the
number of days equal to the number of days during the period
beginning with and including the date of such suspension or
interruption to and including the date when the sale of
Registrable Securities pursuant to such Registration Statement
may be recommenced.
7. Indemnification.
(a) Indemnification by the Company. In the event of
any registration of any securities of the Company under the
Securities Act pursuant to Sections 3 or 4 hereof, the Company
will, and it hereby does, indemnify and hold harmless, to the
full extent permitted by law, (i) each of the Holders of any
Registrable Securities covered by such registration statement,
and (ii) each other person registering Company securities
pursuant to such registration statement, in each case together
with its directors and officers, general partners, limited
partners and managing directors (and directors, officers,
partners and managing directors thereof), and (iii) each other
person who participates as an underwriter or selling agent in the
offering or sale of such securities and each other person, if
any, who controls, is controlled by or is under common control
with such Holder or any such underwriter or selling agent within
the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act (for purposes of this Section 8(a), "Indemnified
Person"), against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including any
amounts paid in any settlement effected with the Company's
consent) to which such Indemnified Person may become subject
under the Securities Act, the Exchange Act, state securities or
blue sky laws, common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof) or expenses arise out of or are based upon (a)
any untrue statement or alleged untrue statement of any material
fact contained, on the effective date thereof, in any
registration statement under which such securities were
registered under the Securities Act, any preliminary, final or
summary prospectus contained therein, or any amendment or
supplement thereto, (b) any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (c)
any violation by the Company of any federal, state or common law
rule or regulation applicable to the Company and relating to
action required of or inaction by the Company in connection with
any such registration, and, in each case, the Company will
reimburse such Indemnified Person for any reasonable legal or any
other expenses reasonably incurred by them in connection with
investigating or defending such loss, claim, liability, action or
proceeding; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or
expense is caused by any untrue statement or alleged untrue
statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto or in
any such preliminary, final or summary prospectus in reliance
upon and in conformity with written information furnished to the
Company through an instrument duly executed by such Indemnified
Person specifically stating that it is for inclusion therein or
if an underwriter fails to deliver a final prospectus in
accordance with the Securities Act and the rules and regulations
thereunder and such delivery would have cured the defect causing
such loss, claim, damage or liability. Such indemnity shall
remain in full force and effect regardless of any investigation
made by or on behalf of such Indemnified Person and shall survive
the transfer of such securities by such Indemnified Person.
(b) Indemnification by the Holders, Other Sellers and
Underwriters. The Company may require, as a condition to
including any Registrable Securities in any registration
statement filed in accordance with Section 6 hereof, that the
Company shall have received an undertaking reasonably
satisfactory to it from each of the Holders of such Registrable
Securities, each other person registering Company securities
pursuant to such registration statement or any underwriter or
selling agent, to severally and not jointly, indemnify and hold
harmless (in the same manner and to the same extent as set forth
in subsection (a) of this Section 7) the Company and its
directors, officers, controlling persons, any underwriter or
selling agent and all other prospective sellers and their
respective directors, officers, general and limited partners,
managing directors, and their respective controlling persons (for
purposes of this Section 7(b), "Indemnified Persons") but only
with respect to (a) any untrue statement or alleged untrue
statement of any material fact contained, on the effective date
thereof, in any registration statement under which such
securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or
any amendment or supplement thereto or, (b) any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case in reliance upon and in conformity with
written information furnished to the Company or its
representatives through an instrument duly executed by or on
behalf of such Holder, other selling person or underwriter or
selling agent specifically stating that it is for inclusion
therein. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the
Indemnified Persons and shall survive the transfer of such
securities by such indemnifying party; provided, however, that no
such indemnifying party shall be liable under this Section 7 for
any amounts exceeding the product of the purchase price per
Registrable Security and the number of Registrable Securities
being sold pursuant to such registration statement or prospectus
by such indemnifying party.
(c) Notices of Claims, Etc. Promptly after receipt by
an indemnified party hereunder of written notice of the
commencement of any action or proceeding (including any
governmental investigation with respect to which a claim for
indemnification may be made pursuant to this Section 7, such
indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, promptly give written notice
to the latter of the commencement of such action; provided,
however, that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of
its obligations under the preceding subsections of this Section
7, except to the extent that the indemnifying party is actually
materially prejudiced by such failure to give notice. In case
any such action is brought against an indemnified party, unless
in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may
exist in respect of such claim, the indemnifying party will be
entitled to participate in and, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the
defense thereof, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and
indemnifying parties arises in respect of such claim after the
assumption of the defense thereof, and the indemnifying party
will not be subject to any liability for any settlement made
without its consent (which consent shall not be unreasonably
withheld). No indemnifying party will consent to entry of any
judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of an unconditional release
from all liability arising out of such claim or litigation. An
indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel (and one local
counsel) for all parties indemnified by such indemnifying party
with respect to such claim, unless in the reasonable judgment of
any indemnified party a conflict of interest may exist between
such indemnified party and any other of such indemnified parties
with respect to such claim, in which event the indemnifying party
shall be obligated to pay the fees and expenses of such
additional counsel or counsels. All fees and expenses incurred
by an indemnified person which are covered by the indemnity will
be paid on a current basis when billed. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the
immediately preceding sentence, the indemnifying party shall be
deemed to have agreed that it shall be liable for any settlement
of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 business days after
receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement.
(d) Contribution. If the indemnification provided for
in Sections 7(a) or (b) is unavailable to the indemnified parties
in respect of any losses, claims, damages or liabilities referred
to herein, then each such indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (i) as between the
Company and the selling Holders on the one hand and the
underwriters on the other hand, in such proportion as is
appropriate to reflect the relative benefits received by the
Company and the selling Holders on the one hand and the
underwriters on the other hand from the offering of all of the
securities sold in the offering, or if such allocation is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits but also the relative
fault of the Company and the selling Holders on the one hand and
of the underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations and (ii) as between the Company on the one hand
and each selling Holder on the other hand, in such proportion as
is appropriate to reflect the relative fault of the Company and
of each selling Holder in connection with such statements or
omissions, as well as any other relevant equitable
considerations. The relative benefits received by the Company
and the selling Holders on the one hand and the underwriters on
the other hand shall be deemed to be in the same proportion as
the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received
by the Company and the selling Holders bear to the total
underwriting discounts and commissions received by the
underwriters, in each case as set forth in the table on the cover
page of the prospectus. The relative fault of the Company and
the selling Holders on the one hand and of the underwriters on
the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and
the selling Holders or by the underwriters. The relative fault
of the Company on the one hand and of each selling Holder on the
other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by such party, and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the selling Holders agree that it would not
be just and equitable if contribution pursuant to this Section
7(d) were determined by pro rata allocation (even if the
underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7(d), no
underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission, and no selling Holder shall be required to contribute
any amount in excess of the amount by which the total price at
which the securities of such selling Holder were offered to the
public exceeds the amount of any damages which such selling
Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The selling Holders'
obligations to contribute pursuant to this Section 7(d) are
several in proportion to the proceeds of the offering received by
each selling Holder bears to the total proceeds of the offering
received by all the selling Holders and not joint.
(e) Other Indemnification. Indemnification similar to
that specified in the preceding subsections of this Section 7
(with appropriate modifications) shall be given by the Company
and each Holder of Registrable Securities with respect to any
required registration or other qualification of securities under
any federal or state law or regulation of governmental authority
other than the Securities Act
8. Rule 144. The Company hereby covenants that after the
Company shall have filed a registration statement pursuant to the
requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act
(excluding a registration statement on Form F-4), the Company
will file in a timely manner all reports required to be filed by
it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder (or, if the Company
is not required to file such reports, it will, upon the request
of any Holder of Registrable Securities, make publicly available
other information so long as necessary to permit sales under Rule
144 under the Securities Act), and it will take such further
action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any
Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied
with such requirements. In addition, the Company hereby agrees
that for a period of eighteen months following the date on which
a registration statement filed pursuant to Section 3 shall have
become effective, the Company shall not deregister such
securities under Section 12 of the Exchange Act (even if then
permitted to do so pursuant to the Exchange Act and the rules and
regulations promulgated thereunder).
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities
which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement, as hereafter amended.
The Company has not previously entered into any agreement with
respect to any of its equity securities granting any registration
rights to any person, except the Existing Agreement which is
being superseded hereby.
(b) Remedies. The Company acknowledges and agrees
that in the event of any breach of this Agreement by it, the
Holders would be irreparably harmed and could not be made whole
by monetary damages. The Company accordingly agrees to waive the
defense in any action for specific performance that a remedy at
law would be adequate and that the Holders, in addition to any
other remedy to which they may be entitled at law or in equity,
shall be entitled to compel specific performance of this
Agreement in any action instituted in the United States District
Court for the Southern District of New York, or, in the event
said Court would not have jurisdiction for such action, in any
court of the United States or any state thereof having subject
matter jurisdiction for such action, the Company consents to
personal jurisdiction in any such action brought in the United
States District Court for the Southern District of New York or
any such other court and to service of process upon it in the
manner set forth in Section 9(d) hereof.
(c) Entire Agreement. This Agreement and the
Shareholders Agreement constitute the entire agreement and
understanding of the parties hereto in respect of the subject
matter contained herein and, as to Wilhelmsen and Cruise
Associates, therein, and there are no restrictions, promises,
representations, warranties, covenants, or undertakings with
respect to the subject matter hereof and thereof, other than
those expressly set forth or referred to in such agreements.
This Agreement and, as to Wilhelmsen and Cruise Associates, the
Shareholders Agreement, supersede all prior agreements and
understandings among the parties hereto with respect to the
subject matter hereof and, as to Wilhelmsen and Cruise
Associates, thereof, including, without limitation, the Existing
Agreement.
(d) Notices. Any notice, request, instruction or
other document to be given hereunder by any party hereto to
another party hereto shall be in writing, shall be delivered
personally or sent by certified or registered mail, postage
prepaid, return receipt requested, or by Federal Express or other
delivery service, to the address of the party set forth in
Schedule A hereto or, in the case of a transferee of a Holder, to
the address set forth in the written agreement executed pursuant
to Section 9(h) hereof, if any, or to such other address as the
party to whom notice is to be given may provide in a written
notice to the Company, a copy of which written notice shall be
maintained on file with the Secretary of the Company. No notice
shall be effective except upon actual delivery.
(e) Applicable Law. The laws of the State of Delaware
shall govern the interpretation, validity and performance of the
terms of this Agreement, regardless of the law that might be
applied under applicable principles of conflicts of laws.
(f) Severability. The invalidity, illegality or
unenforceability of one or more of the provisions of this
Agreement in any jurisdiction shall not affect the validity,
legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality or enforceability of
this Agreement, including any such provision, in any other
jurisdiction, it being intended that all rights and obligations
of the parties hereunder shall be enforceable to the fullest
extent permitted by law.
(g) Other Agreements. Nothing contained in this
Agreement shall be deemed to be a waiver of, or release from, any
obligations any party hereto may have under, or any restrictions
on the transfer of Registrable Securities or other securities of
the Company imposed by, any other agreement.
(h) Successors; Transferees. The provisions of this
Agreement shall be binding upon and accrue to the benefit of the
parties hereto and their respective successors. Persons who
acquire Registrable Securities from a Holder may become party to
this Agreement as a Holder with the consent of the transferring
Holder at the time of the transfer. A Holder who has transferred
Registrable Securities may enter into a separate agreement with
the transferee of such Registrable Securities regarding the
exercise of rights and allocation of responsibilities hereunder
provided that such agreement states that it will be inoperative
to the extent that it requires a Holder to violate this
Agreement.
(i) Defaults. A default by any party to this
Agreement in such party's compliance with any of the conditions
or covenants hereof or performance of any of the obligations of
such party hereunder shall not constitute a default by any other
party.
(j) Amendments, Waivers. This Agreement may not be
amended, modified or supplemented and no waivers of or consents
to departures from the provisions hereof may be given unless
consented to in writing by the Company and Holders owning 75% of
the Registrable Securities provided that the number of
registration statements which a Holder is entitled to demand
under Section 3(a) cannot be reduced without such Holder's
consent.
(k) Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same
Agreement.
(l) Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement, or where any
provisions hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
(m) Headings. The headings and captions contained
herein are for convenience of reference only and shall not
control or affect the meaning or construction of any provision
thereof.
(n) Participation in Underwritten Registrations. No
person, including a Holder, may participate in any underwritten
registration hereunder unless such person (i) agrees to sell such
person's securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the
terms of such underwriting arrangements and this agreement.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
ROYAL CARIBBEAN CRUISES LTD.
By: s/_____________________
Name:
Title:
X. XXXXXXXXXX AS.
By: s/____________________
Name:
Title:
CRUISE ASSOCIATES
By: CET Investment Group, a
general partner
By: Canadian Imperial Bank of
Commerce Trust Company
(Bahamas) Limited, as Trustee
of Settlement T-577, a
general partner
By: s/________________________
Xxxxxx X. Xxxxxxxx,
Manager, Trust Department
MONUMENT CAPITAL CORPORATION
By: s/______________________
Name:
Title:
ARCHINAV HOLDINGS, LTD.
By: s/_____________________
Name:
Title:
OVERSEAS CRUISESHIP, INC.
By: s/_____________________
Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
SCHEDULE A
Royal Caribbean Cruises Ltd.
0000 Xxxxxxxxx Xxx
Xxxxx, Xxxxxxx 00000
XXX
Attention: Xxxxxxx X. Xxxx
X. Xxxxxxxxxx AS.
X.X. Xxx 0000
Xxxx
X-0000 Xxxx, Xxxxxx
Attention: Xxxx Xxxxxxxxxx
Cruise Associates
c/o Canadian Imperial Bank
of Commerce Trust Company (Bahamas) Limited, as
Trustee of Xxxxxxxxxx X-000
X.X. Xxx X-0000
Xxxxxx, Xxxxxxx
Attention: Xxxxxx X. Xxxxxxxx
Monument Capital Corporation
Xxxxxx Xxxxx
Xxxxxxxxxx xxx Xxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx
Archinav Holdings Ltd.
Chandris House
95 Akti Xxxxxxx
XX 000 00 Xxxxxxx
Xxxxxx
Attention: M.G. Skordias
Overseas Cruiseship, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
Attention: Xxxxxx X. Xxxxx, Esq.
================================================================
__________________
REGISTRATION RIGHTS AGREEMENT
__________________
Among
ROYAL CARIBBEAN CRUISES LTD.,
X. XXXXXXXXXX AS.,
CRUISE ASSOCIATES,
MONUMENT CAPITAL CORPORATION,
ARCHINAV HOLDINGS, LTD.
and
OVERSEAS CRUISESHIP, INC.
Dated as of July 30, 1997
=================================================================
