SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ORIENT-EXPRESS HOTELS LTD.
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(Exact name of registrant as specified in its charter)
Bermuda 98-0223493
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(State of incorporation or organization) (IRS Employer
Identification No.)
41 Cedar Avenue
P.O. Box 1179
Hamilton HM EX, Bermuda --
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(Address of principal executive offices) (Zip Code)
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange on which
Title of each class registered each class is registered
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Class A Common Shares, New York Stock Exchange
par value $0.01 each
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. |X|
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. |_|
Securities Act registration statement file number to which this form
relates: 33-12030
Securities to be registered pursuant to Section 12(g) of the Act: None
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Item 1. Description of Registrant's Securities to be Registered.
Dividend Rights
Holders of the Registrant's class A common shares, par value $.01 each (the
"Class A Shares"), and class B common shares, par value $.01 each (the "Class B
Shares"), receive such dividends as the Registrant's board of directors declares
out of amounts available under Bermuda law for that purpose. The board of
directors may not declare a cash dividend on the Class A or Class B Shares
without at the same time declaring an equal cash dividend on the other class of
common shares.
For distributions other than cash dividends, the Class A and Class B Shares
rank equally and have the same rights, except that
o the Registrant can distribute Class A Shares, or rights, options or
warrants to subscribe for Class A Shares, only to the holders of Class A
Shares,
o the Registrant can distribute Class B Shares, or rights, options or
warrants to subscribe for Class B Shares, only to the holders of Class B
Shares, and
o the ratio of the number of Class A Shares outstanding to the number of
Class B Shares outstanding, each on a fully diluted basis, must be the same
immediately after such a distribution as immediately before it, except as
may be provided in the shareholder rights agreement described below.
No Bermuda law, decree or regulation restricts the export or import of
capital, affects payment of dividends or other distributions by the Registrant
to non-resident shareholders, or subjects United States holders of Class A
Shares or Class B Shares to taxes. Future dividends will depend upon the
Registrant's results of operations, financial position, capital requirements and
other relevant factors.
The Registrant is not party to any indentures or agreements restricting the
payment of dividends to its shareholders.
Voting Rights
Except as otherwise provided by Bermuda law, the holders of Class A and
Class B Shares have exclusive voting rights at any general meeting of
shareholders of the Registrant, subject to the voting rights of the holders of
any preferred shares which the Registrant may issue in the future.
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In general, holders of Class A Shares and holders of Class B Shares vote
together as a single class with holders of Class A Shares having one-tenth of
one vote per share and holders of Class B Shares having one vote per share.
However,
o Any action varying the rights of either class would require the separate
approval of that class as well as the approval of both classes voting
together.
o Any "Business Combination," as defined in the Registrant's bye-laws,
involving the Registrant and an "interested person" must be approved by the
holders of not less than 90% of the outstanding Class A and Class B Shares
voting together as a single class, each with one vote, unless the Business
Combination meets certain procedural and fair price requirements. An
interested person is defined generally as a person, other than the
Registrant, Sea Containers Ltd. and each of their respective subsidiaries,
which is the beneficial owner of shares or rights over shares carrying 15%
or more of the votes which may be cast at any general meeting of the
Registrant.
o The shareholders of the Registrant may remove directors from office, with
or without cause, at a special general meeting only by a resolution adopted
by the holders of not less than 90% of the outstanding Class A and Class B
Shares voting together as a single class, each with one vote. A director
may also be removed for cause by resolution of the directors, or can be
defeated for re-election at an annual general meeting.
o If at any time a person becomes an interested person as defined above, that
person, with certain exceptions, will not be able to cast more than 15% of
the votes which may be cast at any general meeting of the Registrant for a
period of five years from the date that such person first became an
interested person.
There is no provision for cumulative voting for the election of directors, so
that those shareholders can elect all of the directors which together can cast a
majority of the votes represented by all outstanding Class A Shares each with
one-tenth of a vote and Class B Shares each with one vote.
In general, under The Companies Act 1981 of Bermuda and the Registrant's
bye-laws, approval of any matter proposed at any general meeting requires the
affirmative vote of a simple majority of the total votes cast on that matter by
the holders of Class A Shares and Class B Shares present in person or
represented by proxy. Matters requiring such simple majority approval include
proposals for the sale of all or substantially all of the Registrant's assets,
and amendments to its memorandum of association or bye-laws. A few matters would
require more than majority approval under The Companies Act 1981, such as loans
to directors, which would require the affirmative vote of at least 90% of the
total votes of all outstanding Class A and Class B Shares, or a change of the
Registrant's independent auditors, which would require the affirmative vote of
at least two-thirds of the total votes cast of Class A and Class B Shares, or a
proposal for the amalgamation or merger of the Registrant with another
corporation, which would require the affirmative vote of at least 75% of the
total votes cast of Class A and Class B Shares.
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The normal quorum for general meetings is the presence, in person or by
proxy, of the holders of Class A and Class B Shares carrying a majority of the
votes which may be cast at the meeting. However, at any special general meeting
called for the purpose of electing directors or increasing or reducing the
number of directors, the holders of not less than 90% in number of the
outstanding Class A and Class B Shares must be present in person or by proxy to
constitute a quorum.
There are no limitations imposed by Bermuda law or by the Registrant's
charter and bye-laws on the rights of persons who are not citizens or residents
of Bermuda to hold or vote Class A or Class B Shares.
The Rights
On June 5, 2000, the board of directors of the Registrant authorized the
distribution of one preferred share purchase right (a "Right") for each
outstanding Class A Share and Class B Share of the Registrant outstanding on the
close of business of the closing date of the Registrant's initial public
offering of Class A Shares. The Registrant will continue to issue Rights with
all Class A and Class B Shares issued after that date until the Distribution
Date (as defined below) or until the Rights are redeemed or expire.
The Rights are being issued pursuant to a Rights Agreement dated as of June
1, 2000, between the Registrant and Fleet National Bank, as Rights Agent (the
"Rights Agreement"). The following summary of the Rights is qualified in its
entirety by reference to the Rights Agreement, which is incorporated by
reference as an exhibit to this Registration Statement.
There is associated with each outstanding "Voting Share" of the Registrant
one Right which, except as set forth below, when exercisable, entitles the
registered holder to purchase from the Registrant one one-hundredth of a share
of a series of preferred shares of the Registrant designated as Series A Junior
Participating Preferred Shares, par value of $.01 each (the "Preferred Shares"),
at a price of $142 per one one-hundredth of a share (the "Purchase Price"),
subject to adjustment. The Voting Shares of the Registrant are its Class A
Shares and Class B Shares. The terms of the Preferred Shares are summarized
below and are set forth in a Certificate of Designation of Terms attached as
Exhibit A to the Rights Agreement.
The Rights will be represented by the certificates for Voting Shares, and
will not be exercisable or transferable apart from the Voting Shares, until the
earlier to occur of (i) 10 days following a public announcement that a person or
group of affiliated or associated persons (an "Acquiring Person") has acquired
beneficial ownership of shares carrying 20% or more of the total voting rights
which may be cast at any general meeting of the Registrant, or (ii) 10 days (or
such later date as may be determined by the Registrant's board of directors)
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of affiliated or associated
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persons of shares carrying 30% or more of the total voting rights which may be
cast at any general meeting of the Registrant (the earlier of such dates being
called the "Distribution Date"). No person shall be deemed to be an Acquiring
Person if its percentage ownership in the Registrant increases solely as a
result of a share repurchase program by the Registrant or a subsidiary of the
Registrant. Acquiring Person does not include the Registrant or Sea Containers
or a subsidiary of either of them, or any employee benefit plan of the
Registrant or any subsidiary of the Registrant or any entity holding shares for
any such plan.
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferable with and only with the Voting Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Voting Share certificates issued upon transfer or new issuance of Voting Shares
will contain a notation incorporating the Rights Agreement by reference, and the
surrender for transfer of any certificates for Voting Shares, even without such
notation, will also constitute the transfer of the Rights associated with the
Voting Shares represented by such certificate. As soon as practicable following
the Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Voting Shares as of
the close of business on the Distribution Date, and such separate Right
Certificates alone will evidence the Rights. In certain circumstances, Rights
may be issued after the Distribution Date, such as in connection with the
issuance of Voting Shares upon the exercise of employee stock options or upon
the conversion of convertible securities of the Registrant.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on June 1, 2010 (the "Final Expiration Date"), unless earlier redeemed by
the Registrant, as described below.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the then current market price of the Preferred Shares, or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular cash dividends or dividends payable in Preferred
Shares) or of subscription rights or warrants (other than those referred to
above).
The number of outstanding Rights and the number of one one-hundredths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Voting Shares or a stock
dividend on the Voting Shares payable in Voting Shares or subdivisions,
consolidations or combinations of the Voting Shares occurring prior to the
Distribution Date.
The Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1.00 per
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share but will be entitled to an aggregate dividend of 100 times the dividend
declared per Class A Share. In the event of liquidation, the holders of the
Preferred Shares will be entitled to a minimum preferential liquidation payment
of $100 per share but will be entitled to an aggregate payment of 100 times the
payment made per Voting Share. All dividend and liquidation preferences of the
Preferred Shares will rank junior to such preferences in all preferred shares
hereafter issued by the Registrant. Each Preferred Share will generally vote
together as one class with the Voting Shares on all matters on which the holders
of Voting Shares generally are entitled to vote, with each Preferred Share
entitled to a number of votes calculated by multiplying 100 by the number of
votes per share which the holders of Class A Shares then have with respect to
the matter being voted upon. Finally, in the event of any merger, amalgamation,
consolidation or other transaction in which Voting Shares are exchanged, each
Preferred Share will be entitled to receive 100 times the amount received per
Voting Share. The foregoing preferential rights are protected by customary
antidilution provisions.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued upon the
exercise of Rights. In lieu of fractional Preferred Shares, the Registrant will
make a cash payment based on the market price of such fractional Preferred
Shares on the last trading day prior to the date of exercise.
If after the Distribution Date, (a) the Registrant is acquired in a merger,
amalgamation or other business combination transaction and all or part of the
Voting Shares are changed into or exchanged for securities, cash or property of
another person, or (b) 50% or more of the Registrant's consolidated assets or
earning power is sold, each holder of a Right (other than Rights beneficially
owned by an Acquiring Person, which Rights will be void) will thereafter have
the right to receive, upon the exercise of such Right at the then current
Purchase Price, an amount of the common equity of the "Principal Party" which at
the time of such transaction would have a market value of two times the Purchase
Price of the Right. In the case of clause (a) above, the Principal Party shall
in general be the issuer of any securities into which Voting Shares of the
Registrant are converted in such merger, amalgamation or other business
combination transaction, except that if (i) the common equity of such issuer has
not been continuously registered under Section 12 of the Securities Exchange Act
of 1934 for at least twelve months, and (ii) such issuer is a subsidiary of
another issuer the common equity of which is so registered, the Principal Party
shall be such other issuer. In the case of clause (b) above, if there is more
than one acquiror of the Registrant's assets or earning power, the Principal
Party shall be the entity receiving the greatest portion of the transferred
assets or earning power of the Registrant.
If any person becomes an Acquiring Person, each holder of a Right (other
than Rights beneficially owned by an Acquiring Person, which will be void) will
thereafter have the right to receive, upon exercise of such Right at the then
current Purchase Price, that number of Class A Shares (in case of a Right which
prior to the Distribution Date was evidenced by a certificate for Class A
Shares) or Class B Shares (in the case of a Right which prior to the
Distribution Date was evidenced by a certificate for Class B Shares), or other
securities, cash or property, which at the time
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of such acquisition would have a market value of two times the Purchase Price.
The Rights will not be so exercisable, however, until the Registrant's right to
redeem the Rights has expired (see below).
At any time after any person becomes an Acquiring Person, and before a
person or group (other than the Registrant, Sea Containers or a subsidiary of
either of them, or any employee benefit plan of the Registrant or of any
subsidiary of the Registrant, or any entity holding Class A or Class B Shares
for or pursuant to the terms of such plan) acquires beneficial ownership of 50%
or more of the total voting rights which may be cast at any general meeting of
the Registrant, the board of directors of the Registrant may exchange all or
some of the Rights then outstanding (other than Rights beneficially owned by an
Acquiring Person, which Rights will be void) at an exchange ratio of one Class A
Share per Right (in the case of Rights which prior to the Distribution Date were
evidenced by certificates for Class A Shares) and one Class B Share per Right
(in the case of Rights which prior to the Distribution Date were evidenced by
certificates for Class B Shares), subject to adjustment in certain events.
At any time prior to the close of business on the 10th day following the
date on which a person becomes an Acquiring Person, the board of directors of
the Registrant may redeem the Rights in whole, but not in part, at a price of
$.05 per Right, subject to adjustment for stock splits, stock dividends or
similar transactions (the "Redemption Price"). The Registrant may, at its
option, pay the Redemption Price in cash, Class A Shares or any other form of
consideration deemed appropriate by the board of directors. Immediately upon any
redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended or supplemented by the board of
directors of the Registrant without the consent of the holders of the Rights,
except that from and after such time as any person becomes an Acquiring Person,
no such amendment may adversely affect the interests of the holders of the
Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Registrant, including, without limitation, the
right to vote or to receive dividends.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the
Registrant on terms not approved by the Registrant's board of directors, except
pursuant to an offer conditioned on a substantial number of Rights being
acquired. The Rights should not interfere with any merger or other business
combination approved by the board of directors, since the Rights may be redeemed
by the Registrant at $.05 per Right within 10 days after the date a person
becomes an Acquiring Person.
Liquidation Rights
In a liquidation, dissolution or winding-up of the Registrant, holders of
Class A and Class B Shares as a single class would participate equally per share
in the assets remaining available for
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distribution to shareholders, after payment of the liabilities or the Registrant
and the liquidation preferences on its preferred shares.
Conversion Rights
The Class A Shares are not convertible into any other security. Each Class
B Share is convertible at any time without any additional payment into one Class
A Share.
Miscellaneous
Neither Class A nor Class B Shares have the benefit of sinking fund
provisions or are redeemable or carry any preemptive or other rights to
subscribe for additional shares, except that holders of Class B Shares may
convert their shares into Class A Shares as described above. The holders of
Class A and Class B Shares are not liable for any further calls or assessments.
Item 2. Exhibits
1 Bye-Laws 1, 3, 50, 71, 74, 127, 128 and 129 of the Registrant,
included in Exhibit 3.2 to the Registrant's Registration Statement on
Form S-1, Registration No. 333-12030 (the "Form S-1") and incorporated
herein by reference.
2 Schedules 1 and 2 to the Bye-Laws of the Registrant, included in
Exhibit 3.2 to the Form S-1 and incorporated herein by reference.
3 Rights Agreement dated as of June 1, 2000, between the Registrant and
Fleet National Bank, as Rights Agent, filed as Exhibit 1 to the
Registrant's Registration Statement on Form 8-A dated July 28, 2000,
for the Registrant's Preferred Share Purchase Rights, and incorporated
herein by reference.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
ORIENT-EXPRESS HOTELS LTD.
Date: July 28, 2000
By:/s/Edwin S. Hetherington
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Edwin S. Hetherington
Secretary
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