OMB APPROVAL
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. _______)
Royal Caribbean Cruises Ltd.
(Name of issuer)
Common Stock, par value $0.01 per share
(Title of class of securities)
000V7780T1
(CUSIP Number)
Robert N. Cowen, Overseas Shipholding Group, Inc.,
1114 Avenue of the Americas, New York, New York 10036
(212) 869-1222
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
July 28, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
1(b)(3) or (4), check the following box [ ]
* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter the disclosures provided
in a prior cover page.
The information required in the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
CUSIP No. 000V7780T1
1 NAME OF REPORTING PERSONS
Overseas Shipholding Group, Inc.
2 S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
13-2637623
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER 3,781,055
SHARES
BENEFICIALLY 8 SHARED VOTING POWER -0-
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER 3,781,055
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER -0-
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,781,055
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.3%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
CUSIP No. 00V7780T1
1 NAME OF REPORTING PERSONS
Overseas Cruiseship, Inc.
2 S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
13-2637623
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF 7 SOLE VOTING POWER -0-
SHARES
BENEFICIALLY 8 SHARED VOTING POWER 3,649,655
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER -0-
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER 3,649,655
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,649,655
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
Item 1. Security and Issuer
The class of equity securities to which this statement relates is
the Common Stock, $.01 par value per share (the "Common Stock"),
of Royal Caribbean Cruises Ltd. (the "Issuer" or "RCCL"). The
principal executive offices of the Issuer are located at 1050
Caribbean Way, Miami, Florida 33132.
Item 2. Identity and Background
This statement is being filed by Overseas Shipholding Group, Inc.
("OSG") and Overseas Cruiseship, Inc. ("OCI") (individually, a
"Reporting Person" and collectively, the "Reporting Persons")
with respect to 3,649,655 shares of Common Stock (the "Shares")
issued to OCI in connection with the sale of OCI's 49% interest
in Celebrity Cruise Lines, Inc. ("Celebrity") to Issuer.
OSG is a Delaware corporation engaged in the bulk shipping
business. Its principal executive office is at 1114 Avenue of
the Americas, New York, New York 10036. OCI, a wholly owned
subsidiary of OSG, is a Cayman Islands corporation engaged solely
in the holding of shares in Celebrity (and now RCCL). The
principal office of OCI is located at P.O. Box 190, George Town,
Cayman Islands.
Information as to each executive officer and director of each of
OSG and OCI is set forth in Schedule A hereto and is incorporated
herein by reference. During the last five years, neither the
Reporting Persons nor, to the knowledge of either Reporting
Person, any person named on Schedule A hereto has been convicted
in any criminal proceeding (excluding traffic violations or
similar misdemeanors) except for the proceeding described in
Exhibit 7.4 involving two directors; nor has either Reporting
Person, or to the knowledge of either Reporting Person, any
person named in Schedule A hereto, been a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violations with respect to
such laws.
Item 3. Source and Amount of Funds or Other Consideration
The Shares were acquired as partial consideration for the sale by
OCI to Issuer of stock of Celebrity owned by OCI, representing
49% of the outstanding shares of Celebrity, pursuant to a stock
purchase agreement dated July 2, 1997 by and among Archinav
Holdings, Ltd., OCI, Celebrity and RCCL (the "Stock Purchase
Agreement").
Item 4. Purpose of Transaction
The Shares were acquired as partial payment for the sale of OCI's
interest in Celebrity and are being held by the Reporting Persons
for the purpose of investment.
For a period of 7 years, OCI, pursuant to the Stock Purchase
Agreement and a letter agreement dated July 2, 1997 executed by
the majority stockholders of RCCL (the "Letter Agreement"), will
be entitled to nominate one representative to serve on RCCL's
Board of Directors. OCI's right to nominate one representative
to the Board of RCCL will terminate in the event that the
Reporting Persons are the record owners of less than 75% of the
shares of Common Stock it received in the transaction. Except
for the agreement of certain stockholders to vote for OCI's
nominee, as set forth in the Letter Agreement, there are no
agreements among OCI and other stockholders of the Issuer that
would require voting in tandem on important issues or would
otherwise place effective control over the Issuer in the hands of
one individual or a single investor group.
Except as disclosed in this Item 4, neither Reporting Person nor,
to the best of either Reporting Person's knowledge, any person
named in Schedule A hereto has plans or proposals which relate to
or would result in (a) the acquisition by any person of
additional securities of the Issuer or the disposition of
Securities of the Issuer, (b) an extraordinary corporate
transaction, such as a merger, reorganization, or liquidation,
involving the Issuer or any of its subsidiaries, (c) a sale or
transfer of a material amount of the assets of the Issuer or any
of its subsidiaries, (d) any change in the present Board of
Directors or management of the Issuer, including any plans or
proposals to change the number or term of directors or to fill
any existing vacancies on the Board, (e) any material change in
the present capitalization or dividend policy of the Issuer, (f)
any other material change in the Issuer's business or corporate
structure, (g) changes in the Issuer's charter, bylaws, or
instruments corresponding thereto or other actions which may
impede the acquisition or control of the Issuer by any person,
(h) causing a class of the securities of the Issuer to be
delisted from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system of a
registered national securities association, (i) a class of equity
securities of the Issuer becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended, or (j) any action similar to
any of those enumerated above. However, the Reporting Persons,
their affiliates or any person named on Schedule A hereto may,
from time to time, purchase additional shares of RCCL Common
Stock in the open market, by private purchase or otherwise and
may, subject to restrictions on transfer under the Securities Act
of 1933, as amended (the "Securities Act") and those described in
Item 6, dispose of some or all of the shares of Common Stock at
any time or from time to time. In addition, the Reporting
Persons' nominee as director may, in that capacity, act upon
proposals involving one or more of the above listed matters if
any such proposals are presented.
Item 5. Interest in Securities of the Issuer
OCI, pursuant to the sale of its interest in Celebrity to Issuer,
owns 3,649,655 shares of RCCL Common Stock, which is 5.1% of the
outstanding Common Stock (without taking into account the
3,450,000 shares of Series A Convertible preferred stock of RCCL
that is also outstanding). Pursuant to the Stock Purchase
Agreement, however, OCI cannot dispose of the Shares for a
period of one year.
OSG beneficially owns 3,781,055 shares of RCCL Common Stock,
including the 3,649,655 shares owned by OCI. OSG has the sole
power to vote or to direct the disposition of the 131,400 shares
it owned prior to the transaction with RCCL. By reason of OSG's
relationship to OCI, OSG may also be deemed to have the sole
power to vote and to direct the disposition of the Shares. OCI
may be deemed to share with OSG the power to vote and to direct
the disposition of the Shares.
No person named on Schedule A hereto beneficially owns any shares
of RCCL Common Stock. No transactions in RCCL Common Stock have
been effected in the past 60 days by any person named on Schedule
A hereto, or, except as stated in Item 3, by the Reporting
Persons.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
OCI received the Shares pursuant to the Stock Purchase Agreement,
an essential condition to the closing of which was the expiration
or termination of the waiting period required under the Hart-
Scott-Rodino Act. That waiting period expired at midnight on
July 25, 1997.
The Reporting Persons have certain rights to have the Shares
registered under the Securities Act pursuant to a registration
rights agreement among RCCL, A. Wilhelmsen AS, Cruise Associates,
Monument Capital Corporation, Archinav Holdings, Ltd., and OCI
(the "Registration Rights Agreement"); however, under the Stock
Purchase Agreement, OCI has agreed not to dispose of the Shares
for a period of one year.
OCI, pursuant to the Stock Purchase Agreement and the Letter
Agreement, is entitled to name one person to the board of
directors of RCCL. See Item 4.
Except as disclosed in this statement or the documents referred
to herein, there are no contracts, arrangements, understandings
or relationships (i) among either Reporting Person and any other
person with respect to the securities of RCCL or (ii) to the best
knowledge of the Reporting Persons, among the persons named on
Schedule A hereto or between such persons and any other person
with respect to any securities of RCCL.
Item 7. Material to Be Filed as Exhibits
7.1 Stock Purchase Agreement, dated July 2, 1997
7.2 Registration Rights Agreement, dated July 30, 1997.
7.3 Letter Agreement, dated July 2, 1997.
7.4 Proxy Statement with respect to the Annual Meeting of
Stockholders of OSG held on June 10, 1997 (filed via EDGAR
on April 24, 1997, pursuant to Section 14(a), and
incorporated herein by reference).
<PAGE>
Signature
After reasonable inquiry and to the best of each of the
undersigned's knowledge and belief, each of the undersigned
certifies that the information set forth in this statement is
true, complete and correct.
Overseas Shipholding Group, Inc.
August 6, 1997 By: /s/Robert N. Cowen
Date Name: Robert N. Cowen
Title: Senior Vice President and
Secretary
Overseas Cruiseship, Inc.
By: /s/Robert N. Cowen
Name: Robert N. Cowen
Title: Senior Vice President and
Secretary
<PAGE>
Schedule A
Overseas Shipholding Group, Inc.
The names of the Directors and the names and titles of the
Executive Officers of Overseas Shipholding Group, Inc. ("OSG")
and their business addresses and present principal occupations
are set forth below. If no address is given, the Director's or
Officer's business address is that of OSG. Each individual is a
citizen of the United States except for Messrs. Raphael Recanati
and Oudi Recanati who are citizens of Israel.
Name, Residence or Business
Address Present Principal Occupation
Raphael Recanati Director (Chairman of Finance and
511 Fifth Avenue Development Committee of the Board)
New York, NY 10017 President, Finmar Equities Co.,
shipping, finance and banking.
Morton P. Hyman Director
President of OSG
Robert N. Cowen Director
Senior Vice President and Secretary of
OSG
George C. Blake Director
511 Fifth Avenue Executive Vice-President, Maritime
New York, NY 10017 Overseas Corporation, ship agents and
brokers
Thomas H. Dean Director
23 Mohawk Street Consultant, Continental Grain Company,
Rye, NY 10580 integrated food company
Michel Fribourg Director
277 Park Avenue Director and Chairman Emeritus of the
New York, NY 10172 Board, Continental Grain Company
William L. Frost Director
60 East 42nd Street, Attorney and President, Lucius N.
Suite 2910 Littauer Foundation
New York, NY 10165
Ran Hettena Director
511 Fifth Avenue President, Maritime Overseas Corporation
New York, NY 10017
<PAGE>
Stanley Komaroff Director
Proskauer Rose LLP Partner, law firm of Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Solomon N. Merkin Director
415 Madison Avenue, Vice President, Leib Merkin, Inc.,
3rd Floor private investment company
New York, NY 10017
Joel I. Picket Director
201 East 42nd Street, President and Chairman of the Board,
26th Floor Gotham Organization, Inc., real estate,
New York, NY 10017 construction and development
Oudi Recanati Director
Daniel Frisch No. 3 Joint Managing Director, IDB Holding
"The Tower" Corporation Ltd., investment and finance
Tel Aviv 64731
Israel
Myles R. Itkin Senior Vice President, Chief Financial
Officer and Treasurer of OSG
Alan Carus Controller of OSG
Senior Vice President, Maritime Overseas
Corporation
Overseas Cruiseship, Inc.
The names of the Directors and the names and titles of the
Executive Officers of Overseas Cruiseship, Inc. ("OCI") are set
forth below. Information as to the principal occupations and
addresses of the individuals listed are the same as they appear
above.
Name, Residence or
Business Address Title
Morton P. Hyman President
Robert N. Cowen Senor Vice President and Secretary
Myles R. Itkin Senior Vice President and Treasurer
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
7.1 Stock Purchase Agreement,
dated July 2, 1997.
7.2 Registration Rights Agreement,
dated July 30, 1997.
7.3 Letter Agreement,
dated July 2, 1997.
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated July 2, 1997, among Archinav
Holdings, Ltd., a Liberian corporation ("Archinav"), Overseas
Cruiseship, Inc., a Cayman Island corporation ("Overseas," and
together with Archinav, the "Stockholders"), Celebrity Cruise
Lines, Inc., a Cayman Island corporation (the "Company"), and
Royal Caribbean Cruises Ltd., a Liberian corporation (the
"Purchaser").
W I T N E S S E T H:
WHEREAS, the Stockholders currently own all of the issued
and outstanding shares of capital stock of the Company; and
WHEREAS, the parties believe that it is in their respective
best interests of their respective stockholders to consummate the
sale and purchase of all of the capital stock of the Company upon
the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements and covenants hereinafter set forth, the
Purchaser, the Company and the Stockholders hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms. Capitalized terms
used but not defined in the text of this Agreement shall have the
meaning set forth on Annex A attached hereto and incorporated
herein by reference.
SECTION 1.02 Other Defined Terms. The following terms
shall have the meanings defined for such terms in the Sections
set forth below:
Term Section
Antitrust Division 5.04(d)
Assets 3.22(a)
Balance Sheet 4.07
Balance Sheet Date 4.07
Cap 8.04(e)
Cash Consideration 2.02
Claims 8.01
Closing 2.04
Closing Date 2.04
<PAGE>
Term Section
Company Preamble
Contract 3.19
Convertible Preferred Stock 4.04
Deductible 8.04(d)
Environmental Expiration Date 8.04(b)
ERISA 3.23(a)(i)
ERISA Affiliate 3.23(a)(i)
Exchange Act 4.06(b)
Financial Statements 3.12(a)
Foreign Plans 3.23(b)
FTC 5.04(d)
General Expiration Date 8.04(a)
Indemnification Claim 8.02(a)
Interim Financial Statements 3.14(a)
Investment Proposal 5.05
1996 Form 20-F 4.06
Notice Date 8.02(b)(i)
Notice of Claims 8.02(a)
Purchaser Preamble
Purchaser Common Stock 2.02
Purchaser Indemnified Parties 8.01
Purchase Price 2.01
Restricted Stock 2.02
SEC 4.06(a)
SEC Reports 4.06(a)
Securities Act 2.02
State Acts 3.05(b)
Stockholder Indemnified Parties 8.03
Tax Expiration Date 8.04(b)
Third Party Claim 8.02(b)(i)
Transaction Documents Definition of
Material
Adverse Effect
U.S. Plan 3.33(a)(i)
U.S. Plans 3.33(a)(i)
Vessel 3.22(c)
SECTION 1.03 Dollars. Unless otherwise specifically set
forth herein, all references to "$" or "Dollars" shall mean
United States dollars.
<PAGE>
ARTICLE II
SALE AND PURCHASE OF SHARES
SECTION 2.01 Sale and Purchase of Shares. Subject to the
terms and conditions contained in this Agreement, and in reliance
upon the representations, warranties and agreements of the
parties hereto, on the Closing Date (as defined below), the
Stockholders shall sell to the Purchaser and the Purchaser shall
purchase from the Stockholders, all of the issued and outstanding
shares of Company Stock for a purchase price equal to Five
Hundred and Fifteen Million Dollars ($515,000,000) payable as set
forth in Section 2.02 below (the "Purchase Price").
SECTION 2.02 Payment of Purchase Price; Transfer
Restriction. At the Closing (as defined below), the Purchaser
shall deliver to the Stockholders (a) an aggregate of Two Hundred
and Forty-Five Million Dollars ($245,000,000) by electronic wire
transfer of immediately available funds to the accounts
designated by each of the Stockholders on Exhibit 2.02 attached
hereto (the Cash Consideration") and (b) stock certificates
evidencing an aggregate number of shares of newly-issued common
stock, par value $.01 per share of the Purchaser ("Purchaser
Common Stock"), equal to the greater of (i) 7,448,276 shares of
Purchaser Common Stock, and (ii) such number of shares of
Purchaser Common Stock determined by dividing Two Hundred Seventy
Million Dollars ($270,000,000) by the average of the closing sale
price on the New York Stock Exchange of the Purchaser Common
Stock for the five trading days immediately preceding the Closing
Date (the "Restricted Stock"); provided, however, that, such
five-day period shall be reduced to the extent necessary so that
no such trading day shall include a day on or prior to the second
trading day after the date of this Agreement; and provided
further, that notwithstanding the foregoing, in the event that
the closing sale price on the New York Stock Exchange of the
Purchaser Common Stock for the trading day immediately preceding
the Closing Date is at least $36.25, then Purchaser shall deliver
stock certificates evidencing an aggregate of 7,448,276 shares of
Purchaser Common Stock. Notwithstanding the foregoing or any
other provision contained in this Agreement to the contrary, no
fractional shares of Restricted Stock and no certificates or
scrip therefor, or other evidence thereof, will be issued
pursuant to this Agreement. Rather, the number of shares of
Restricted Stock to be delivered to each Stockholder pursuant
hereto shall be rounded to the nearest whole share. The Cash
Consideration and the Restricted Stock shall be allocated between
the Stockholders as set forth in Exhibit 2.02. Notwithstanding
the provisions of Rule 144 or any other exemption provided in or
promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), each Stockholder agrees that, for a period of
one year following the Closing Date, it shall not sell, transfer,
assign, convey, pledge (other than pursuant to the Stock Pledge
Agreement described in Section 6.03(j)) or otherwise dispose of
its Restricted Stock.
SECTION 2.03 Delivery of Shares. At the Closing, each
Stockholder shall deliver or cause to be delivered to the
Purchaser stock certificates representing (a) in the case of
Archinav, 2,652,000 shares of Class C ordinary shares of the
Company and (b) in the case of Overseas, 2,548,000 shares of
Class O ordinary shares of the Company, which shares constitute
all of the issued and outstanding shares of capital stock of the
Company. All shares of Company Stock delivered pursuant to this
Section 2.03 shall be (x) duly endorsed in blank or accompanied
by a stock transfer power duly executed in blank, in proper form
for transfer, and with all stock transfer tax stamps affixed
thereto and (y) free and clear of all Encumbrances (other than
resale restrictions arising under Federal or state securities
laws).
SECTION 2.04 Closing; Closing Date. The consummation of
the transactions contemplated by this Agreement (the "Closing")
shall take place at the offices of Proskauer Rose LLP, 9 Rue Le
Tasse, 75116 Paris, France, commencing at 10:00 a.m., local time,
on the date which is three Business Days after satisfaction of
the conditions set forth in Section 6.01, hereof, or at such
other date, time and place as the parties may agree. The time
and date upon which the Closing occurs is referred to herein as
the "Closing Date."
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
As an inducement to the Purchaser to enter into this
Agreement, the Stockholders hereby severally (and not jointly)
represent and warrant to the Purchaser as to the matters set
forth in this Article III, it being understood and acknowledged
that each Stockholder is only making representations and
warranties on behalf of itself with respect to the subject matter
of Sections 3.01 through 3.05 below.
SECTION 3.01 Organization and Authority. (a) Each
Stockholder has all necessary corporate power and authority to
enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by each Stockholder and
the other Transaction Documents to which it is a party, the
performance by each Stockholder of its obligations hereunder and
the consummation by each Stockholder of the transactions
contemplated hereby and thereby have been duly authorized by all
requisite corporate action on the part of each Stockholder. This
Agreement has been and upon their execution, the other
Transaction Documents to which each Stockholder is a party will
be duly executed and delivered by each Stockholder, and (assuming
due authorization, execution and delivery by the Purchaser and
the Company) this Agreement constitutes a legal, valid and
binding obligation of each Stockholder enforceable against each
Stockholder in accordance with its terms, except as such
enforcement may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(b) Each Stockholder is a corporation duly organized,
validly existing and in good standing under the Laws of its
jurisdiction of incorporation and has all necessary power and
authority to own, operate or lease the properties and assets now
owned, operated or leased by it and to carry on its business as
it has been and is currently conducted. All corporate actions
taken by each Stockholder in connection with this Agreement and
the transactions contemplated hereby have been duly authorized,
and no Stockholder has taken any action with respect to such
matters that conflicts with, constitutes a default under or
results in a violation of any provision of its charter documents.
SECTION 3.02 No Conflict; Consents. Assuming compliance
with the notification requirements of the HSR Act and the making
and obtaining of all filings, notifications, consents, approvals,
authorizations and other actions referred to in Section 3.03,
except as may result from any facts or circumstances relating
solely to the Purchaser, the execution, delivery and performance
of this Agreement and the other Transaction Documents by each
Stockholder do not and will not (a) violate, conflict with or
result in the breach of any provision of the charter documents of
each Stockholder, (b) conflict with or violate any Law or
Governmental Order applicable to each Stockholder or (c) conflict
with, or result in any breach of, constitute a default (or event
which with the giving of notice or lapse of time, or both, would
become a default) under, require any consent under, or give to
others any rights of termination, amendment, acceleration,
suspension, revocation, or cancellation of, or result in the
creation of any Encumbrance on any of the assets or properties of
such Stockholder, including the Company Stock, pursuant to, any
note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or
arrangement to which such Stockholder is a party or by which any
of such assets or properties are bound or affected which would
have a material adverse effect on the ability of each Stockholder
to consummate the transactions contemplated by this Agreement.
SECTION 3.03 Governmental/Regulatory Consents and
Approvals. The execution, delivery and performance of this
Agreement by each Stockholder does not and will not require any
consent, approval, authorization or other order of, action by,
filing with, or notification to, any Governmental Authority or
self regulatory organization, except (a) as described in Schedule
3.03, and (b) the notification requirements of the HSR Act.
SECTION 3.04 Title to Company Stock. As of the Closing
Date, each Stockholder shall own beneficially and of record, free
and clear of all Encumbrances (other than resale restrictions
created by Federal and state securities laws), that number of
shares of Company Stock set forth in Schedule 3.08(b) and, upon
delivery of and payment for such shares as provided herein, the
Stockholders will convey to the Purchaser good and valid title
thereto, free and clear of all Encumbrances (other than resale
restrictions created by Federal and state securities laws).
SECTION 3.05 Investment Intent. With respect to the
Restricted Stock, each Stockholder hereby represents and warrants
to, or agrees with, the Purchaser as follows:
(a) Each Stockholder is acquiring its Restricted Stock
as an investment without any intention of participating, directly
or indirectly, in any distribution or transfer of such stock
which would violate the U.S. Securities laws or the State Acts.
(b) Each Stockholder understands and acknowledges that
the Restricted Stock has not been registered under the Securities
Act or under any state securities or "Blue Sky" laws
(collectively, the "State Acts") or any similar laws of any other
foreign jurisdiction. Each Stockholder acknowledges and agrees
that it may not offer to sell, pledge, hypothecate, assign or
otherwise transfer all or any part of the Restricted Stock except
(i) pursuant to an effective registration statement under the
Securities Act and any applicable State Acts or (ii) in a
transaction exempt from registration under such acts and, if
requested by the Purchaser, the delivery of an opinion of counsel
addressed to Purchaser to such effect.
(c) Each Stockholder acknowledges that the acquisition
of the Restricted Stock is a speculative investment involving a
high degree of risk and that it is able to bear the economic risk
of its investment in the Purchaser for an indefinite period of
time.
(d) Each Stockholder acknowledges that it has had
access to all information necessary for the purpose of evaluating
the risk of its investment in the Purchaser and of making an
informed decision concerning such investment, and has such
knowledge and experience in financial and business matters that
it is capable of evaluating the risks and merits of this
investment.
(e) When and if the Restricted Stock may be disposed
of without registration under the Securities Act in reliance on
Rule 144, such disposition may be made only in limited amounts in
accordance with the terms and conditions of such Rule and in
accordance with Section 2.02 hereof.
(f) A restrictive legend substantially in the
following form shall be placed on the certificates representing
the Restricted Stock:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR SECURITIES LAWS OF
OTHER JURISDICTIONS AND MAY NOT BE OFFERED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY
TO THE ISSUER, SUCH DISPOSITION IS EXEMPT FROM SUCH
REGISTRATION REQUIREMENTS. THE SECURITIES EVIDENCED BY
THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON DISPOSITION AS SET FORTH IN THE STOCK
PURCHASE AGREEMENT, DATED JULY 2, 1997, AMONG THE
ISSUER, CELEBRITY CRUISE LINES, INC. AND THE
STOCKHOLDERS OF CELEBRITY CRUISE LINES, INC., A COPY OF
WHICH IS AVAILABLE FOR INSPECTION AT THE ISSUER'S
CORPORATE OFFICES."
(g) A notation shall be made in the appropriate
records of the Purchaser indicating that the Restricted Stock is
subject to restrictions on transfer and appropriate stop-transfer
instructions will be issued to the Purchaser's transfer agent
with respect to the Restricted Stock.
(h) Each Stockholder is an "accredited investor" as
that term is defined under Regulation D promulgated under the
Securities Act.
SECTION 3.06 Authority of the Company. The Company has
all necessary corporate power and authority to enter into this
Agreement and the other Transaction Documents to which it is a
party, to carry out its obligations hereunder and thereunder and
to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the other
Transaction Documents to which it is a party by the Company, the
performance by the Company of its obligations hereunder and
thereunder and the consummation by the Company of the
transactions contemplated hereby and thereby have been duly
authorized by all requisite corporate action on the part of the
Company. This Agreement has been, and upon their execution the
other Transaction Documents to which the Company is a party shall
have been, duly executed and delivered by the Company, and
(assuming due authorization, execution and delivery by the
Purchaser and the Stockholders of this Agreement and such other
Transaction Documents to which the Purchaser and the Stockholders
are parties) this Agreement constitutes, and upon their execution
such other Transaction Documents will constitute, legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as such
enforcement may be subject to (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
SECTION 3.07 Organization and Qualification of the
Company. The Company is a corporation duly organized, validly
existing and in good standing under the Laws of the Cayman
Islands and has all necessary corporate power and authority to
own, operate or lease the properties and assets now owned,
operated or leased by it and to carry on the Business as it has
been, is currently and is anticipated to be conducted. The
Company is duly licensed or qualified to do business and is in
good standing in each jurisdiction in which the properties owned
or leased by it or the operation of its business makes such
licensing or qualification necessary, except where the failure to
be so licensed, qualified or in good standing does not have a
Material Adverse Effect. True and correct copies of the
Memorandum and Articles of Association of the Company, each as in
effect on the date hereof, have been delivered by or on behalf of
the Stockholders to the Purchaser.
SECTION 3.08 Capital Stock of the Company. (a) The
authorized capital stock of the Company consists of 10,000,000
ordinary shares divided into 5,100,000 shares of Class C ordinary
shares, par value CI $10.00 per share and 4,900,000 shares of
Class O ordinary shares, par value CI $10.00 per share. As of
the date hereof, 2,652,000 shares of Class C ordinary shares of
the Company and 2,548,000 shares of Class O ordinary shares of
the Company are issued and outstanding, all of which are validly
issued, fully paid and nonassessable. None of the issued and
outstanding shares of Company Stock was issued in violation of
any preemptive rights. There are no options, warrants,
convertible or exchangeable securities, or except as set forth in
that certain Shareholders' Agreement, dated October 21, 1992,
among the Company and the Stockholders, as amended, other rights,
agreements, arrangements or commitments of any character relating
to the capital stock of the Company or its Subsidiaries or
obligating the Company to issue or sell any shares of capital
stock of, or any other interest in, the Company. There are no
outstanding contractual obligations of the Company or its
Subsidiaries to repurchase, redeem or otherwise acquire any
shares of Company Stock or capital stock of any of the Company's
Subsidiaries or to provide funds to, or make any investment (in
the form of a loan, capital contribution or otherwise) in, any
other Person.
(b) Schedule 3.08(b) sets forth (i) the name and last
known address of each Person who is a record owner of shares of
capital stock of the Company and (ii) the certificate number of
each certificate evidencing shares of capital stock issued by the
Company and the number of shares evidenced by each such
certificate.
SECTION 3.09 Subsidiaries. (a) Schedule 3.09(a) sets
forth for each Subsidiary of the Company (i) its name and
jurisdiction of incorporation, (ii) the number of shares of
authorized capital stock (or similar equity interests) of each
class of its capital stock (or similar equity interests) and
(iii) the number of issued and outstanding shares of each class
of its capital stock (or similar equity interests), the names of
the holders thereof, and the number of shares held by each such
holder. Other than the Subsidiaries described in Schedule
3.09(a) and the other investments listed thereon, there are no
other corporations, partnerships, limited liability companies,
joint ventures, associations or other entities in which the
Company owns, of record or beneficially, any direct or indirect
equity or other interest or any right (contingent or otherwise)
to acquire the same. Other than the Subsidiaries and investments
described in Schedule 3.09(a), the Company is not a member of
(nor is any part of the Business conducted through) any
partnership. Except as set forth in Schedule 3.09(a), the
Company is not a participant in any joint venture or similar
arrangement.
(b) Each Subsidiary of the Company (i) is duly
organized and validly existing under the laws of its jurisdiction
of organization, (ii) has all necessary power and authority to
own, operate or lease the properties and assets owned, operated
or leased by such Subsidiary and to carry on its business as it
has been, and as it is currently conducted by such Subsidiary and
(iii) is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the properties owned or
leased by it or the operation of its business makes such
licensing or qualification necessary, except for such failures
which, when taken together with all other such failures, would
not have a Material Adverse Effect.
(c) Except as set forth in Schedule 3.09(c), all the
outstanding equity interests of each Subsidiary which are owned,
directly or indirectly, by the Company are validly issued, fully
paid, nonassessable and, except with respect to wholly-owned
Subsidiaries, free of preemptive rights and are owned by the
Company, whether directly or indirectly, free and clear of all
Encumbrances.
(d) Except as set forth in Schedule 3.09(d), there are
no options, warrants, convertible or exchangeable securities, or
other rights, agreements, arrangements or commitments of any
character relating to the capital stock (or similar equity
interests) of any Subsidiary of the Company or obligating the
Company or any Subsidiary thereof to issue or sell any shares of
capital stock of, or any other interest in, any such Subsidiary.
(e) True and complete copies of the charter and by-
laws (or similar organizational documents), in each case as in
effect on the date hereof, of each Subsidiary of the Company have
been delivered by the Company to the Purchaser.
(f) Except as set forth in Schedule 3.09(f), no
Subsidiary of the Company is a member of (nor is any part of its
business conducted through) any partnership nor is any such
Subsidiary a participant in any joint venture or similar
arrangement.
(g) Except as set forth in Schedule 3.09(g), there are
no voting trusts, stockholder agreements, proxies or other
agreements or understandings to which the Company or any of its
wholly-owned Subsidiaries is a party in effect with respect to
the voting or transfer of any shares of capital stock of or any
other interests in any Subsidiary of the Company.
(h) The stock register of each wholly-owned Subsidiary
of the Company accurately records: (i) the name and address of
each Person owning shares of capital stock (or similar equity
interests) of such Subsidiary and the number of shares owned by
each such Person.
SECTION 3.10 No Material Conflicts; Consents. Assuming
that all consents, approvals, authorizations and other actions
described in Section 3.11 have been obtained and all filings and
notifications listed in Schedule 3.11 have been made, except as
may result from facts or circumstances relating solely to the
Purchaser, the execution, delivery and performance of this
Agreement and the other Transaction Documents by the Company and
its Subsidiaries do not and will not (a) violate, conflict with
or result in the breach of any provision of the charter or by-
laws (or similar organizational documents) of the Company or any
of its Subsidiaries, (b) conflict with or violate any Law or
Governmental Order applicable to the Company, any of its
Subsidiaries or any of their respective assets, properties or
businesses, including, without limitation, the Business, which
conflict or violation would, individually or in the aggregate,
have a Material Adverse Effect or (c) except as set forth in
Schedule 3.10, conflict with, result in any breach of, constitute
a default (or event which with the giving of notice or lapse of
time, or both, would become a default) under, require any consent
under, or give to others any rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, or
result in the creation of any Encumbrance on any of the assets or
properties of the Company or any of its Subsidiaries pursuant to,
any note, bond, mortgage or indenture, contract, agreement,
lease, sublease, license, permit, franchise or other instrument
or arrangement to which the Company or any of its Subsidiaries is
a party or by which any of such assets or properties is bound or
affected, which conflict, breach, default or violation or failure
to obtain consent would, individually or in the aggregate, have a
Material Adverse Effect.
SECTION 3.11 Governmental/Regulatory Consents and
Approvals. The execution, delivery and performance of this
Agreement and the other Transaction Documents by the Company do
not and will not require any consent, approval, authorization or
other order of, action by, filing with or notification to any
Governmental Authority or self regulatory organization, except
(a) as described in Schedule 3.11 and (b) the notification
requirements of the HSR Act, or (c) where the failure to secure
any such consent, approval, authorization or other order of,
action by, filing with or notification to any Governmental
Authority or self-regulatory organization would not result in a
Material Adverse Effect.
SECTION 3.12 Financial Information; Books and Records.
(a) True and complete copies of (i) the audited consolidated
balance sheet of the Company for each of the three fiscal years
ended as of December 31, 1994, December 31, 1995 and December 31,
1996, and the related audited consolidated statements of income,
retained earnings, stockholders' equity and cash flows of the
Company, together with all related notes and schedules thereto,
accompanied by the reports thereon of the Company's Accountants
(collectively referred to herein as the "Financial Statements")
and (ii) the unaudited consolidated balance sheet of the Company
as of March 31, 1997 and the related consolidated statements of
income, retained earnings, stockholders' equity and cash flows of
the Company, together with all related notes and schedules
thereto (collectively referred to herein as the "Interim
Financial Statements") have been delivered by the Company to the
Purchaser. The Financial Statements and the Interim Financial
Statements (i) were prepared in accordance with the books of
account and other financial records of the Company, (ii) present
fairly the consolidated financial condition and results of
operations of the Company and its Subsidiaries as of the dates
thereof or for the periods covered thereby, (iii) have been
prepared in accordance with GAAP applied on a basis consistent
with the past practices of the Company (except, with respect to
the Interim Financial Statements, subject to normal year-end
adjustments and the customary omission of full footnote
disclosures) and (iv) include all adjustments that are necessary
for a fair presentation of the consolidated financial condition
of the Company and its Subsidiaries and the results of the
operations of the Company and its Subsidiaries as of the dates
thereof or for the periods covered thereby (except with respect
to the Interim Financial Statements, subject to normal year-end
adjustments).
(a) The books of account and other financial records
of the Company and its Subsidiaries: (i) have been maintained in
accordance with good business and accounting practices and in a
manner consistent with the past practices of the Company and its
Subsidiaries, respectively and (ii) are in all material respects
complete and correct, and do not contain or reflect any material
inaccuracies or discrepancies.
SECTION 3.13 No Material Undisclosed Liabilities. There
are no Liabilities of the Company or any of its Subsidiaries,
other than Liabilities (i) reflected or reserved against on the
balance sheet included in the Interim Financial Statements, (ii)
disclosed in Schedule 3.13, (iii) incurred since the date of the
Interim Financial Statements in the ordinary course of the
Business, consistent with the past practice, of the Company and
its Subsidiaries, or (iv) Liabilities which, individually or in
the aggregate, would not have a Material Adverse Effect.
SECTION 3.14 Conduct in the Ordinary Course; Absence of
Certain Changes, Events and Conditions. Since the date of the
Interim Financial Statements, except as disclosed in Schedule
3.14, the Business has been conducted in the ordinary course and
consistent with past practice. As amplification and not
limitation of the foregoing, except as disclosed in Schedule
3.14, since the date of the Interim Financial Statements, neither
the Company nor any of its Subsidiaries has:
(i) made any loan to, guaranteed any Indebtedness
of or otherwise incurred any Indebtedness on behalf of any
Related Party (other than key employees), which has a
current outstanding balance in excess of $40,000;
(ii) redeemed any of the capital stock or
declared, made or paid any dividends or distributions
(whether in cash, securities or other property) to the
holders of capital stock (or similar equity interests) of
the Company or any of its Subsidiaries or otherwise, other
than dividends, distributions and redemptions declared, made
or paid by any Subsidiary solely to (a) the Company, (b) any
wholly-owned Subsidiary of the Company, or (c) any non-
wholly-owned Subsidiary of the Company where such dividend,
distribution or redemption was made pro rata to all equity
holders of such Subsidiary;
(iii) other than capital expenditures (a) in
connection with the construction of the vessel MERCURY,
(b) unanticipated expenditures not covered by insurance,
(c) capital expenditures included in the 1997 budget of the
Company and its Subsidiaries and (d) capital expenditures
specified in Schedule 3.14(iii), made any capital
expenditure or commitment for any capital expenditure or
budgeted any capital expenditure in excess of $1,000,000 in
the aggregate;
(iv) sold, transferred, leased, subleased, time-
chartered, bareboat-chartered, licensed or otherwise
disposed of any Vessels, other than the time-charters of
Vessels to third parties, which are not more than 90 days in
duration and made in the ordinary course of the Business
consistent with past practice;
(v) issued or sold any capital stock or other
equity interests (or other securities convertible or
exchangeable into capital stock or other equity interests),
or any option, warrant or other right to acquire the same,
of, or any other interest in, the Company or any of its
Subsidiaries;
(vi) entered into any agreement, arrangement or
transaction with, or made any payment (other than regular
payments of salary or wages to employees of the Company or
its Subsidiaries) to, any Related Party;
(vii) (A) granted any increase, or announced any
increase, in the wages, salaries, compensation, bonuses,
incentives, pension or other benefits payable by the Company
or any of its Subsidiaries to any of its employees,
including, without limitation, any increase or change
pursuant to any Plan or (B) established or increased or
promised to increase any benefits under any Plan, in either
case except (i) as required by Law, any collective
bargaining agreement or any other agreement listed in the
Schedule 3.14(vii) or (ii) for increases in wages or
salaries in the ordinary course of business and in a manner
consistent with the past practices of the Company or such
Subsidiary;
(viii) other than in connection with the
construction and acquisition of the vessel MERCURY, incurred
any new, or increased the existing principal amount of
Indebtedness for borrowed money in an amount exceeding
$5,000,000 in the aggregate;
(ix) amended, restated or otherwise modified the
Memorandum and Articles of Association (or other similar
organizational documents) of the Company or any of its
Subsidiaries;
(x) made charitable contributions of cash
or by distribution of Assets in excess of an aggregate of
$25,000;
(xi) suffered any casualty loss or damage with
respect to any of the Vessels, whether or not such loss or
damage shall have been covered by insurance, or suffered any
damage, destruction or loss (whether or not covered by
insurance) which, in any one case or in the aggregate, has
had or could reasonably be expected to have a Material
Adverse Effect; or
(xii) agreed, whether in writing or otherwise, to
take any of the actions specified in this Section 3.14 or
granted any options to purchase, rights of first refusal,
rights of first offer or any other similar rights or
commitments with respect to any of the actions specified in
this Section 3.14, except as expressly contemplated by this
Agreement.
SECTION 3.15 Litigation. Except as set forth in Schedule
3.15 (which, with respect to each Action disclosed therein, sets
forth: the parties, nature of the proceeding, date and method
commenced), there are no Actions by or against the Company or any
of its Subsidiaries, or the Assets or the Business, pending (or,
to the knowledge of the Stockholders, threatened) which if
adversely determined could reasonably be expected to have a
Material Adverse Effect. Except as set forth in Schedule 3.15,
none of the Company, its Subsidiaries nor any of the Assets is
subject to any Governmental Order (nor, to the knowledge of the
Stockholders, are there any such Governmental Orders threatened
to be imposed by any Governmental Authority), which could have a
Material Adverse Effect.
SECTION 3.16 Related Party Transactions. Except as set
forth in Schedule 3.16, no Related Party or Affiliate is directly
or indirectly a party to any contract or other arrangement
(whether written or oral) with the Company or any of its
Subsidiaries providing for services, products, goods or supplies,
rental of real or personal property, or otherwise requiring
payments from or to the same in excess of $250,000 annually,
individually, or $1,000,000 annually, in the aggregate or which
has a term in excess of one year and which cannot be terminated
by the Company or its Subsidiaries without penalty or other
adverse consequences. Except as set forth on in Schedule 3.16,
no Related Party has any financial interest in any competitor of
the Company or any of its Subsidiaries, other than competitors
which are publicly traded companies.
SECTION 3.17 Compliance with Laws. Except as set forth in
Schedule 3.17, the Company and its Subsidiaries have each
conducted the Business in accordance with all Laws (including,
without limitation, the Foreign Corrupt Practices Act) and
Governmental Orders applicable to the Company or any of its
Subsidiaries or any of the Assets or the Business, and neither
the Company nor any of its Subsidiaries is in violation of any
such Law or Governmental Order, in each case, except where such
conduct or violation would not, individually or in the aggregate,
have a Material Adverse Effect.
SECTION 3.18 Environmental Matters. (a) Except as set
forth in Schedule 3.18(a), the Company and its Subsidiaries are
in compliance with all applicable Environmental Laws, except
where the failure to be in compliance would not be reasonably
expected to have a Material Adverse Effect.
(b) Except as set forth in Schedule 3.18(b), neither
the Company nor any of its Subsidiaries is subject to any
Environmental Claims which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect.
SECTION 3.19 Material Contracts.
(a) Except as disclosed in Schedule 3.19(a), each
contract, agreement, commitment, lease, sublease, license,
arrangement and understanding, whether written or oral (each a
"Contract"), of the Company and its Subsidiaries: (i) is valid
and binding on the respective parties thereto and is in full
force and effect and (ii) upon consummation of the transactions
contemplated by this Agreement, except to the extent that any
consents set forth in Schedule 3.19(a) are not obtained, shall
continue in full force and effect without penalty or other
adverse consequence, and except where the failure of any Contract
to be valid, binding, or in full force and effect would not
reasonably be expected to result in a Material Adverse Effect.
Except as set forth in Schedule 3.19(a), neither the Company nor
any of its Subsidiaries is in breach of, or default under, any
Contract and there are no unresolved disputes with respect to any
Contract, except where such breach, default or unresolved dispute
would not reasonably be expected to result in a Material Adverse
Effect. None of the Company, any of its Subsidiaries or any
Stockholder has received notice that any party to any Contract
intends to modify, cancel or terminate a Contract or refuse to
renew a Contract upon the expiration of the term thereof, whether
as a result of the consummation of the transactions contemplated
hereby or otherwise, except where such modification,
cancellation, termination or refusal to renew would not
reasonably be expected to result in a Material Adverse Effect.
(b) Except as disclosed in Schedule 3.19(b), to the
Stockholders' knowledge, no other party to any Contract is in
breach thereof or default thereunder, except where such breach or
default would not reasonably be expected to result in a Material
Adverse Effect.
(c) Except as disclosed in Schedule 3.19(c) or as
expressly contemplated herein, there is no Contract granting any
Person any preferential right to purchase, other than in the
ordinary course of the Business consistent with past practice,
any of the material properties or assets of the Company or any of
its Subsidiaries.
SECTION 3.20 Intellectual Property. The Company and each
Subsidiary has the right to use the name "Celebrity" in the
cruise line business in the United States. Except as set forth
in Schedule 3.20, the Stockholders have no knowledge that the
conduct of the Business as now operated conflicts with, or
infringes upon, any Intellectual Property rights or franchises of
any Person in any manner.
SECTION 3.21 Real Property. Neither the Company nor any
of its Subsidiaries owns any real property.
SECTION 3.22 Assets. (a) Except as disclosed in Schedule
3.22, either the Company or a Subsidiary of the Company, as the
case may be, owns, leases or has the legal right to use all the
properties and assets including, without limitation, the
Intellectual Property (excluding trade and service names and
marks), the Leased Real Property, and the Tangible Personal
Property, used or intended to be used in the conduct of the
Business or otherwise owned, leased or used by the Company or any
of its Subsidiaries and which are material (all such material
properties and assets being the "Assets"). Either the Company or
a Subsidiary of the Company, as the case may be, has good title
to, or, in the case of leased or subleased Assets, valid and
subsisting leasehold interests in, all the Assets, free and clear
of all Encumbrances, except (i) as disclosed in Schedule 3.22(a),
(ii) Permitted Encumbrances and (iii) those Encumbrances which
would not reasonably be expected to have a Material Adverse
Effect. All of the Vessels are owned by the Company or its
Subsidiaries.
(b) The Assets constitute all the properties, assets
and rights necessary in the conduct of the Business. All the
Assets are functioning as of the date hereof and are suitable for
the purposes for which they are used and intended.
(c) Each Vessel is permanently registered and recorded
in the name of its owner with the appropriate maritime
authorities under the law of its flag country. Except as set
forth on Schedule 3.22(c) hereto, each Vessel is in all respects
seaworthy, is in class, is free of any material recommendations,
notations, visas and reservations by the classification society
in which she is entered, is free of material average damage
affecting class, with all class and trading certificates,
national and international, clean and valid and each Vessel's
hull surveys and continuous machinery survey cycles are up to
date or have been extended. Except where the failure to comply
would not have a Material Adverse Effect, each Vessel and its
owner is in compliance with all current regulations and
requirements (statutory or otherwise) applicable to vessels
registered under the laws of its flag country and applicable to
vessels trading to any jurisdiction to which such Vessel trades.
Except as set forth on Schedule 3.22(c), each Vessel is in
conformity with the current requirements of the U.S. Coast Guard,
IMO and SOLAS and all other national and international rules,
regulations, requirements, treaties and conventions which are
required to be complied with or observed by the Vessel in the
normal course of its operations in order to allow the Vessel to
operate for its intended purpose and, subject to the next
sentence, there are no circumstances known to the Stockholders
which indicate that any of the licenses, permissions,
authorizations and consents relating to the foregoing may be
revoked or may not be renewed, in whole or in part, in the
ordinary course of events. To the knowledge of the Stockholders,
none of the Vessels has been employed in any trade or business
which is unlawful under the laws of any relevant jurisdiction or
in carrying illicit or prohibited goods, in each case to the
extent such use has or could have a continuing Material Adverse
Effect or in any manner whatsoever which may render it liable to
condemnation in a Prize Court or to destruction, seizure or
confiscation.
(d) Following the consummation of the transactions
contemplated by this Agreement, either the Company or a
Subsidiary, as the case may be, will continue to own, pursuant to
good title, or lease, under valid and subsisting leases, or
otherwise retain its respective interest in the Assets, including
without limitation, and the Vessels, without incurring any
penalty or other adverse consequence, including, without
limitation, any increase in rentals, royalties, or licenses or
other fees imposed as a result of, or arising from, the
consummation of the transactions contemplated by this Agreement.
(e) As of the date hereof, with respect to the vessel
MERCURY, none of the Company, any of its Subsidiaries or any of
the Stockholders has been advised of any scheduling or potential
delivery delays or received any force majeure notices which are
currently in effect. Based upon all work requested through the
date hereof, the cost of the vessel MERCURY, including, without
limitation, capitalized interest and all items necessary or
useful to place the vessel MERCURY in service as a passenger
cruise ship upon delivery thereof will not exceed an aggregate of
$380,000,000.
SECTION 3.23 Employee Benefit Matters.
(a) For purposes of this Section 3.23, the following
terms shall have the meanings indicated:
(i) "ERISA" shall mean the Employee
Retirement Income Act of 1974, as amended.
(ii) "Employee benefits plan" shall have the
meaning ascribed thereto in Section 3(3) of ERISA and shall
also mean and, include any other bonus, profit sharing,
compensation, pension, severance, deferred compensation,
fringe benefit, insurance, welfare, medical, post-retirement
welfare benefit, medical reimbursement, health, life, stock
option, stock purchase, tuition refund, service award,
company care, scholarship, relocation, disability, accident,
sick pay, sick leave, vacation, termination, individual
employment, executive compensation, incentive bonus,
commission, payroll practices, retention or other plan,
agreement, policy, trust fund or arrangement maintained,
sponsored or contributed to by the Company, any of its
Subsidiaries or an ERISA Affiliate.
(iii) ERISA Affiliate shall mean any entity
that would be deemed a "single employer" with the Company or
any of its Subsidiaries, under Section 414(b), (c), (m), or
(o) of the Code, or Section 4001 of ERISA.
(iv) "Multiemployer Plan" shall have the
meaning ascribed thereto in Section 4001(a)(3) of ERISA or
Section 414(f) of the Code.
(b) no "prohibited transaction," within the meaning of
Section 4975 of the Code and Section 406 of ERISA, and no other
event or fact has occurred, is expected to occur or exists with
respect to any plan which has subjected or could subject the
Company or any of its Subsidiaries, any officer, director or
employee of the Company or its Subsidiaries, or any trustee,
administrator or other fiduciary, to a tax or penalty imposed by
either Section 502 of ERISA or Section 4975 of the Code, or any
other liability with respect thereto.
(c) to the knowledge of the Stockholders, no employee
benefit plan is under audit or investigation by the IRS or the
United States Department of Labor or any other governmental
authority and no such completed audit, if any, has resulted in
the imposition of any tax or penalty which has not been
satisfied.
(d) Each employee benefit plan of the Company, any of
its Subsidiaries or an ERISA Affiliate, whether U.S. or foreign,
complies in all material respects with, and has been operated and
maintained in substantial compliance with all applicable Laws.
(e) No employee benefit plan of the Company, any of
its Subsidiaries or an ERISA Affiliate, whether U.S. or foreign,
has any unfunded liability (or the equivalent thereof)
individually or in the aggregate exceeding $1,000,000 other than
as specifically reserved for on the Interim Financial Statements.
(f) Neither the Company, any Subsidiary of the Company
or any ERISA Affiliate has contributed to, or is obligated to
contribute to, has any liability to, has sponsored or sponsors or
otherwise participated or participates in a multiemployer plan,
whether U.S. or foreign.
(g) Each employee benefit plan intended to qualify
under Section 401(a) of the Code has received a determination
letter from the IRS to the effect that such plan is qualified
under Section 401 of the Code and any trust maintained pursuant
thereto is exempt from federal income taxation under Section 501
of the Code and nothing has occurred that caused or could cause
the loss of such qualification or exemption or the imposition of
any penalty or tax liability;
SECTION 3.24 Labor Matters. There are no material
controversies, strikes, slowdowns or work stoppages pending or,
to the knowledge of the Stockholders, threatened, between the
Company or any of its Subsidiaries and any of their respective
employees, and neither the Company nor any of its Subsidiaries
has experienced any such material controversy, strike, slowdown
or work stoppage within the past three years.
SECTION 3.25 Taxes. (a) (i) All material returns and
reports in respect of Taxes required to be filed with respect to
the Company and each Subsidiary have been timely filed; (ii) all
such returns and reports are true, correct and complete in all
material respects; (iii) all Taxes required to be shown on such
returns and reports or otherwise due (except with respect to
amounts for which the Company has adequate reserves on the
Interim Financial Statements) have been timely paid; (iv) except
as disclosed on Schedule 3.25(a), no material adjustment relating
to such returns has been proposed formally by any Tax authority
and, to the knowledge of the Stockholders, no basis exists for
any such adjustment; (v) except as disclosed on Schedule 3.25(a),
there are no pending or, to the knowledge of the Stockholders,
threatened actions or proceedings for the assessment or
collection of Taxes against the Company or any Subsidiary or any
corporation that was included in the filing of a return with the
Company on any consolidated, combined or group basis under the
Laws of any Tax authority; (vi) neither the Company nor any
Subsidiary is or has been a domestic corporation within the
meaning of Section 7701(a)(4) of the Code; (vii) neither the
Company nor any Subsidiary is currently or ever has been subject
to any material Tax under Section 882(a) of the Code; (viii)
except as included on Schedule 3.25(a), there are no material Tax
liens on any assets of the Company or any Subsidiary; (ix) except
as disclosed on Schedule 3.25(a), no acceleration of the vesting
schedule for any property that is substantially unvested within
the meaning of the regulations under Section 83 of the Code will
occur in connection with the transactions contemplated by this
Agreement; (x) except as would not have a Material Adverse
Effect, neither the Company nor any Subsidiary has been at any
time a member of any partnership or joint venture or the holder
of a beneficial interest in any trust for any period for which
the statute of limitations for any Tax has not expired; (xi) the
Company and its Subsidiaries have made all material payments of
estimated Taxes required to be made under any comparable
provision to Section 6655 of the Code provided for under the Laws
of any nation, state or locality; (xii) except with respect to
amounts for which the Company has adequate reserves in the
Interim Financial Statements and reserves accrued for periods
thereafter, all Taxes required to be withheld, collected or
deposited by or with respect to the Company or any Subsidiary
have been timely withheld, collected or deposited, as the case
may be, and, to the extent required, have been paid to the
relevant taxing authority; (xiii) neither the Company nor any
Subsidiary is subject to any accumulated earnings tax or personal
holding company tax; and (xiv) except as disclosed on Schedule
3.25(a) neither the Company nor any Subsidiary is a passive
foreign investment company or a United States Real Property
Holding Corporation.
(b) Except as disclosed in Schedule 3.25(b): (i) there
are no outstanding waivers or agreements extending the statute of
limitations for any period with respect to any Tax to which the
Company or any Subsidiary may be subject; (ii) to the knowledge
of the Stockholders, there are no proposed reassessments of any
property owned by the Company or any Subsidiary or other
proposals that could materially increase the amount of any Tax to
which the Company or any Subsidiary would be subject; and (iii)
except as set forth in Schedule 3.25(b), no power of attorney
that is currently in force has been granted with respect to any
matter relating to Taxes that could materially affect the Company
or a Subsidiary.
(c) (i) the Company has delivered to the Purchaser
correct and complete copies of all federal, state and foreign
income, franchise and similar Tax returns since October 1, 1992,
and correct and complete summaries of all examination reports,
and statements of deficiencies assessed against or agreed to by
the Company or any Subsidiary since October 1, 1992; and (ii) the
Company has delivered to the Purchaser a true and complete copy
of any tax-sharing or allocation agreement or arrangement
involving the Company or any Subsidiary and a true and complete
description of any such unwritten or informal agreement or
arrangement.
(d) On the balance sheet included in the Interim
Financial Statements, reserves and allowances have been provided
adequate to satisfy all Liabilities for Taxes, except for
Liabilities for Taxes which individually or in the aggregate
would not have a Material Adverse Affect relating to the Company
and the Subsidiaries for periods through the period covered
thereby.
(e) Except as set forth in Schedule 3.25(e), under
Section 883 of the Code, the United States source gross income of
the Company and each of its Subsidiaries derived from the
international operation of a ship or ships is and has at all
prior times been exempt from U.S. federal income taxes (including
without limitation any tax under Section 887 of the Code).
(f) Through the Closing Date, neither the Company nor
any of its Subsidiaries is currently or ever has been a
controlled foreign corporation within Section 957 of the Code.
SECTION 3.26 Material Adverse Events. Since the date of
the Interim Financial Statement, there have not been any events,
changes or developments relating to the Company and its
Subsidiaries, the Business or the Assets which, either
individually or in the aggregate, have had or could reasonably be
expected to have a Material Adverse Effect, excluding such
events, changes or developments as have a material adverse impact
on the cruise industry as a whole or the U.S. or worldwide
economy generally.
SECTION 3.27 Response to Due Diligence Requests. With
respect to all due diligence requests made by the Purchaser and
its representatives, the Company and the Stockholders (a) have
complied in good faith with each such request, (b) have not
knowingly withheld from the Purchaser or its representatives any
documents, materials or other information responsive or relevant
to any of such requests, (c) have provided documents, materials
and other information in response to such requests that were
either (i) regularly prepared in the ordinary course of the
Company's past practice, or (ii) if specially prepared in
response to such request, prepared in good faith from documents,
materials and/or other information prepared on a basis consistent
with the Company's past practices.
SECTION 3.28 Brokers, Finders, Etc.. None of the Company,
any of its Subsidiaries or any Stockholder has employed any
broker, finder, consultant or other intermediary in connection
with the transactions contemplated by this Agreement who might be
entitled to a fee or commission in connection therewith, except
for Goldman, Sachs & Co. whose fees will be paid by the
Stockholders pursuant to an agreement among such parties.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to the Stockholders to enter into this
Agreement, the Purchaser hereby represents and warrants to the
Stockholders as follows:
SECTION 4.01 Organization and Authority of the Purchaser.
(a) The Purchaser has all necessary corporate power and
authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this
Agreement by the Purchaser, the performance by the Purchaser of
its obligations hereunder and the consummation by the Purchaser
of the transactions contemplated hereby have been duly authorized
by all requisite corporate action on the part of the Purchaser.
This Agreement has been duly executed and delivered by the
Purchaser, and (assuming due authorization, execution and
delivery by the Company and the Stockholders) this Agreement
constitutes a legal, valid and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with
its terms, except as such enforcement may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity
or at law).
(b) The Purchaser is a corporation duly organized,
validly existing and in good standing under the Laws of Liberia
and has all necessary corporate power and authority to own,
operate or lease the properties and assets now owned, operated or
leased by it, to carry on its business as it has been and is
currently conducted, to own the Company Stock and to operate the
Business following the Closing. All corporate actions taken by
the Purchaser in connection with this Agreement and the
transactions contemplated hereby have been duly authorized, and
the Purchaser has not taken any action with respect to such
matters that conflicts with, constitutes a default under or
results in a violation of any provision of its Articles of
Incorporation or By-laws.
SECTION 4.02 No Conflict; Consents. Assuming compliance
with the notification requirements of the HSR Act and the making
and obtaining of all filings, notifications, consents, approvals,
authorizations and other actions referred to in Section 4.03,
except as may result from any facts or circumstances relating
solely to the Company and the Stockholders, the execution,
delivery and performance of this Agreement by the Purchaser do
not and will not (a) violate, conflict with or result in the
breach of any provision of the Articles of Incorporation or By-
laws of the Purchaser, (b) conflict with or violate any Law or
Governmental Order applicable to the Purchaser or any Subsidiary
thereof or any of their respective assets, properties or
businesses which conflict or violation would, individually or in
the aggregate, have a material adverse effect on the Purchaser
and its Subsidiaries taken as a whole or (c) conflict with, or
result in any breach of, constitute a default (or event which
with the giving of notice or lapse of time, or both, would become
a default) under, require any consent under, or give to others
any rights of termination, amendment, acceleration, suspension,
revocation, or cancellation of, or result in the creation of any
Encumbrance on any of the assets or properties of the Purchaser
pursuant to, any note, bond, mortgage or indenture, contract,
agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which the Purchaser is a party or by
which any of such assets or properties are bound or affected,
which conflict or violation would, individually or in the
aggregate, have a material adverse effect on the business or the
financial condition of the Purchaser and its Subsidiaries taken
as a whole.
SECTION 4.03 Governmental/Regulatory Consents and
Approvals. The execution, delivery and performance of this
Agreement by the Purchaser do not and will not require any
consent, approval, authorization or other order of, action by,
filing with, or notification to, any Governmental Authority or
self regulatory organization, except (a) as described in a
writing given to the Stockholders by the Purchaser on the date of
this Agreement, (b) the notification requirements of the HSR Act
and (c) where the failure to secure any such consent, approval,
authorization or order of, action by, filing with, or
notification to, any Governmental Authority would not result in a
material adverse effect on the Purchaser and its Subsidiaries
taken as a whole.
SECTION 4.04 Capital Stock of the Purchaser. The
authorized capital stock of the Purchaser consists of 100,000,000
shares of common stock, $.01 par value per share (the "Purchaser
Common Stock"), and 20,000,000 shares of preferred stock, $.01
par value per share, of which 3,450,000 shares have been
designated as $3.625 Series A Convertible Preferred Stock (the
"Convertible Preferred Stock"). As of the date hereof, (a)
64,001,901 shares of Purchaser Common Stock are issued and
outstanding, (b) 3,450,000 shares of Convertible Preferred Stock
are issued and outstanding, (c) an aggregate of approximately
4,500,000 shares of Purchaser Common Stock are reserved for
issuance under the Purchaser's Employee Stock Purchase Plan,
Employee Stock Option Plan and Incentive Stock Option Plan and
(d) approximately 5,324,000 shares of Purchaser Common Stock are
reserved for issuance upon conversion of the Convertible
Preferred Stock. All outstanding shares of capital stock of the
Purchaser have been duly authorized and validly issued, are fully
paid and non-assessable and are free from pre-emptive rights.
Except as set forth in the SEC Reports, there are no options,
warrants, convertible or exchangeable securities or other rights,
agreements, arrangements or commitments of any character relating
to the capital stock of the Purchaser or obligating the Purchaser
to issue or sell any shares of capital stock of, or any other
interest in, the Purchaser. All shares of Purchaser Common Stock
reserved for issuance as aforesaid or issuable pursuant to this
Agreement, upon issuance on the terms and conditions specified in
the instruments pursuant to which they are issuable, will be duly
authorized, validly issued, fully paid and non-assessable.
Except as set forth in the SEC Reports or as contemplated by this
Agreement, there are no material outstanding contractual
obligations of the Company to repurchase, redeem or otherwise
acquire any shares of Purchaser Common Stock, or to provide funds
to, or make any material investment (in the form of a loan,
capital contribution or otherwise) in, any other Person, other
than a Subsidiary of Purchaser.
SECTION 4.05 Litigation. Except as set forth in the SEC
Reports or in Schedule 4.05 (which, with respect to each Action
disclosed in Schedule 4.05, sets forth: the parties, nature of
the proceeding, date and method commenced), there are no Actions
by or against the Purchaser or any of its Subsidiaries, or the
assets or business of the Purchaser, pending (or, to the
knowledge of the Purchaser, threatened) which if adversely
determined could reasonably be expected to have a material
adverse effect on the business or financial condition of the
Purchaser and its Subsidiaries taken as a whole or its ability to
consummate the transactions contemplated by this Agreement.
Except as set forth in Schedule 4.05, none of the Purchaser, its
Subsidiaries nor any of their assets or business is subject to
any Governmental Order (nor, to the knowledge of the Purchaser,
are there any such Governmental Orders threatened to be imposed
by any Governmental Authority) which could have a material
adverse effect on the business or financial condition of the
Purchaser and its Subsidiaries taken as a whole or its ability to
consummate the transactions contemplated by this Agreement.
SECTION 4.06 SEC Filings. (a) The Purchaser has
delivered to the Stockholders (i) its annual report on Form 20-F
for its fiscal year ended December 31, 1996 ("1996 Form 20-F"),
(ii) its proxy or information statements relating to meetings of,
or actions taken without a meeting by, the stockholders of the
Purchaser held since January 1, 1997, and (iii) all of its other
reports, statements, schedules and registration statements filed
by the Purchaser with the Securities and Exchange Commission (the
"SEC") since January 1, 1997 (collectively, "SEC Reports").
(b) As of its filing date, each SEC Report filed
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") did not contain any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(c) Each such registration statement, as amended or
supplemented, if applicable, filed pursuant to the Securities
Act, as of the date such statement or amendment became effective,
did not contain any 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.
SECTION 4.07 Financial Statements. The audited financial
statements included in the 1996 Form 20-F are true and correct
and fairly present, in conformity with GAAP, applied on a
consistent basis (except as may be indicated in the notes
thereto), the financial position of the Purchaser as of the
Balance Sheet Date and results of operations and changes in
financial position for the periods then ended. For purposes of
this Agreement, "Balance Sheet" means the Purchaser's balance
sheet as of December 31, 1996, including the notes thereto, as
set forth in the Purchaser's Form 20-F referred to in Section
4.06, and "Balance Sheet Date" means the date of the Balance
Sheet.
SECTION 4.08 Conduct in the Ordinary Course. Except as
disclosed in the SEC Reports or as otherwise publicly disclosed,
the Purchaser has conducted its business in the ordinary course
consistent with past practice. Since the date of the last SEC
Report through the date hereof, there have not been any events,
changes or developments relating to the Purchaser and its
Subsidiaries or their respective businesses or assets which,
either individually or in the aggregate, have had or could
reasonably be expected to have a material adverse effect on the
Purchaser and its Subsidiaries taken as a whole, excluding such
events as have a material adverse impact on the cruise industry
as a whole or the U.S. or world economy generally.
SECTION 4.09 Compliance with Laws. Except as disclosed in
the SEC Reports or as set forth in Schedule 4.09, the Purchaser
and its Subsidiaries have conducted their businesses in
accordance with all Laws and Governmental Orders (including
Environmental Laws and Governmental Orders relating to
Environmental Laws or Environmental Matters) applicable to the
Purchaser or any Subsidiary thereof or any of their respective
assets or businesses, and neither the Purchaser nor any
Subsidiary thereof is in violation of any such Law or
Governmental Order, except where such conduct or violation would
not, individually or in the aggregate, have a material adverse
effect on the business or financial condition of the Purchaser
and its Subsidiaries taken as a whole or Purchaser's ability to
consummate the transactions contemplated by this Agreement.
SECTION 4.10 Purchaser's Tax Status. Since February 12,
1997 through the date hereof, the Purchaser has not been advised
in writing by the IRS of any fact that would cause it to believe
the United States income tax status of the Purchaser has changed
or is subject to change.
SECTION 4.11 Investment. Purchaser is acquiring the
Company Stock for its own account for investment and not with a
view toward any resale or distribution thereof.
SECTION 4.12 Brokers. No broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of
the Purchaser.
SECTION 4.13 Available Financing. At the Closing, the
Purchaser will have sufficient financing to pay the Cash
Consideration to the Stockholders pursuant to Section 2.02
hereof.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Conduct of Business Prior to the Closing.
(a) The Company covenants and agrees that, except as
described in Schedule 5.01(a), between the date hereof and the
Closing Date, neither the Company nor any Subsidiary shall
conduct its business other than in the ordinary course and
consistent with the Company's and such Subsidiary's prior
practice.
(b) Except as described in Schedule 5.01(b), the
Company covenants and agrees that, prior to the Closing Date,
without the prior written consent of the Purchaser, which consent
shall not be unreasonably withheld or delayed, neither the
Company nor any Subsidiary will do any of the things enumerated
in clauses (i) through (x) and clause (xii) of the second
sentence of Section 3.14.
SECTION 5.02 Access to Information.
(a) From the date hereof until the Closing Date, upon
reasonable notice, the Stockholders shall cause the Company and
its Subsidiaries and each of the Company's and the Subsidiaries'
officers, directors, employees, agents, representatives,
accountants and counsel to: (i) afford the officers, employees
and authorized agents, accountants, counsel, financing sources
and representatives of the Purchaser reasonable access, during
normal business hours and without unreasonable interference with
business operations, to the offices, properties, plants, vessels,
other facilities, books and records of the Company and each
Subsidiary and to those officers, directors, employees, agents,
accountants, counsel, customers and suppliers of the Company and
of each Subsidiary who have any knowledge relating to the
Company, any Subsidiary or the Business and (ii) furnish to the
officers, employees and authorized agents, accountants, counsel,
financing sources and representatives of the Purchaser such
additional financial and operating data and other information
regarding the assets, properties and goodwill of the Company, the
Subsidiaries and the Business (or legible copies thereof) as the
Purchaser may from time to time reasonably request.
(b) The Company shall promptly furnish to the
Purchaser all material financial reports and statements, budgets
and similar items of the Company and its Subsidiaries that are
prepared in the ordinary course of business between the date
hereof and the Closing Date, including, without limitation,
monthly reports of income, sales, revenue and cash flow, balance
sheets and such other reports as are customarily distributed to
senior management. Prior to the Closing, subject to available
space limitations, the Purchaser shall have the right, upon
reasonable prior notice, during any cruise in which any Vessel is
engaged, to put representatives on board of such Vessels, who
will not interfere in the operation of the Vessel. Such
representatives shall have full access to the Vessel, her spaces
and machineries and decks as may be possible from time to time,
consistent with the safety requirements and the operation of the
Vessel.
(c) No investigation pursuant to this Section 5.02 or
Section 3.05(d) shall affect any representation or warranty in
this Agreement of any party hereto or any condition to the
obligations of the parties hereto.
SECTION 5.03 Purchaser Confidentiality. All information
obtained by the Purchaser pursuant to Section 5.02 shall be kept
confidential in accordance with the Confidentiality Agreement.
At the Closing, the Confidentiality Agreement shall be deemed to
have terminated without further action by the parties thereto.
SECTION 5.04 Regulatory and Other Authorizations; Notices
and Consents.
(a) Each party hereto shall use all reasonable efforts
to obtain (or cause the Company and its Subsidiaries to obtain)
all authorizations, consents, orders and approvals of all
Governmental Authorities and officials that may be or become
necessary for its execution and delivery of, and the performance
of its obligations pursuant to, this Agreement and the other
Transaction Documents, and they will cooperate fully with each
other in promptly seeking to obtain all such authorizations,
consents, orders and approvals.
(b) The Stockholders shall cause the Company and its
Subsidiaries to use all reasonable efforts to give such notices
to third parties and use all reasonable efforts to obtain such
third party consents as the Purchaser may reasonably deem
necessary or desirable in connection with the transactions
contemplated by this Agreement.
(c) The Purchaser shall cooperate and use all
reasonable efforts to assist the Company and its Subsidiaries in
giving such notices and obtaining such consents; provided,
however, that the Purchaser shall have no obligation to give any
guarantee or other consideration of any nature in connection with
any such notice or consent or to consent to any change in the
terms of any agreement or arrangement which the Purchaser may
reasonably deem materially adverse to the interests of the
Purchaser, the Company, any Subsidiary or the Business.
(d) The Stockholders, the Company and Purchaser agree
to make reasonable efforts to effect all necessary filings and
submissions under the HSR Act, and to comply with other requests
for information from Governmental Authorities, to the extent
required by Law. Except as may be restricted by Law, (i) the
parties hereto shall cooperate with each other with respect to
the obtaining of information needed for the preparation of the
Notification and Report Forms required to be filed pursuant to
the HSR Act by Stockholders and/or the Company and Purchaser in
connection with the transaction contemplated hereby, and (ii) the
parties shall use their reasonable efforts to cooperate and
consult with each other with respect to any written or oral
responses to any requests for additional information or
documentary material by the Federal Trade Commission (the "FTC")
or the Antitrust Division of the Department of Justice (the
"Antitrust Division") in connection with the transactions
contemplated hereby; provided, however, that nothing herein shall
require the parties to exchange information which may be deemed
to be of a sensitive or competitive nature. Notwithstanding the
foregoing, none of the Purchaser, the Stockholders or the Company
shall be obligated to contest any action or decision taken by the
FTC or the Antitrust Division or any other Governmental Authority
challenging the consummation of the transactions contemplated
hereby, and nothing contained in this Agreement shall require
Purchaser or its affiliates to agree to hold separate or to
divest any of the assets, properties or businesses of Purchaser
or any of Purchaser's affiliates or otherwise agree to the
imposition of any material restriction on the Business or the
operations of Purchaser or any of Purchaser's Affiliates.
Purchaser, on the one hand, and Stockholders, on the other hand,
shall each pay 50% of the filing fees required under the HSR Act.
SECTION 5.05 No Solicitation. From and after the date of
this Agreement through the Closing or termination of this
Agreement in accordance with its terms, no Stockholder shall nor
shall any Stockholder permit any of its Affiliates (including,
without limitation, the Company) to, nor shall any Stockholder
authorize or permit any investment banker, attorney, employee,
director, officer or other advisor or representative of such
Stockholder or any of his Affiliates to, directly or indirectly,
(a) solicit, initiate or encourage the submission of any
Investment Proposal (as defined below), (b) enter into any
agreement or understanding with respect to any Investment
Proposal or (c) participate in any discussions or negotiations
regarding, or furnish to any Person any information with respect
to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be
expected to lead to, any Investment Proposal. Without limiting
the generality of the foregoing, it is understood that any
violation of the restrictions set forth in the preceding sentence
by any investment banker, attorney, employee, director, officer
or other advisor or representative of a Stockholder or any of its
affiliates, with the knowledge of such Stockholder but whether or
not such Person is purporting to act on behalf of such
Stockholder or otherwise, shall be deemed to be a breach of this
covenant by such Stockholder. For the purposes of this
Agreement, "Investment Proposal" means any proposal or offer
(other than an offer by Purchaser or any of its affiliates) for a
merger, consolidation, financing or other business combination
involving the Company or any proposal or offer (other than a
proposal or offer by Purchaser or any of its affiliates) to
acquire in any manner, directly or indirectly, an interest in any
securities of or a substantial portion of the assets of the
Company or any of its Subsidiaries. The Company and Stockholders
shall promptly notify Purchaser of any Investment Proposal or any
inquiry reasonably likely to lead to an Investment Proposal, and
shall promptly deliver a copy of any such written Investment
Proposal or inquiry to Purchaser. The Stockholders agree not to,
and to cause the Company and each Subsidiary not to, without the
prior written consent of the Purchaser, release any Person from,
or waive any provision of, any confidentiality or standstill
agreement to which the Company or any Subsidiary is a party.
SECTION 5.06 Stockholder Supplements. From time to time
prior to the Closing Date, the Stockholders shall furnish and
shall cause the Company and its Subsidiaries to furnish to the
Purchaser supplemental information with respect to any material
matters or events arising or discovered subsequent to the date
hereof which, if existing or known on the date hereof, would have
rendered any statement, representation or warranty made by the
Stockholders or any information contained in the Disclosure
Schedule provided by the Stockholders then to be inaccurate or
incomplete in any material respect; the furnishing of such
supplemental information shall not, however, affect or otherwise
diminish any of the representations and warranties of the
Stockholders hereunder for purposes of Article III hereof.
SECTION 5.07 Purchaser Supplements. From time to time
prior to the Closing Date, the Purchaser shall furnish to the
Stockholders supplemental information with respect to any
material matters or events arising or discovered subsequent to
the date hereof which, if existing or known on the date hereof,
would have rendered any statement, representation or warranty
made by the Purchaser or any information contained in the
Disclosure Schedule provided by the Purchaser then to be
inaccurate or incomplete in any material respect; the furnishing
of such supplemental information shall not, however, affect or
otherwise diminish any of the representations and warranties of
the Purchaser hereunder for purposes of Article IV hereof.
SECTION 5.08 Listing Application. The Purchaser shall
promptly prepare and submit to the New York Stock Exchange a
listing application covering the Restricted Stock, and shall use
its reasonable best efforts to obtain, prior to the Closing Date,
approval for the listing of such Restricted Stock, subject to
official notice of issuance.
SECTION 5.09 Vessels AMERIKANIS and BRITANIS. On or prior
to the Closing Date, the Stockholders shall purchase from the
Company or its Subsidiaries (as applicable) each of the Vessels
AMERIKANIS and BRITANIS for an aggregate purchase price that will
yield net proceeds to the Company of $10,000,000, pursuant to the
Agreement substantially in the form of Exhibit 5.09 attached
hereto.
SECTION 5.10 Vessel MERIDIAN. For the purposes of this
Section 5.10:
"Alternative Sale Date" means the date upon which the vessel
MERIDIAN is sold and delivered to any party pursuant to an
Alternative MOA or the date upon which the vessel MERIDIAN is
sold and delivered to the Stockholders or their nominee pursuant
to Section 5.10(c)(ii)(5) below;
"Cancelling Date" means the cancelling date under the MOA
including any later date than that specified in Clause 5 of the
MOA to which Metro may agree or on or before which Metro may
permit Fourth Transoceanic to perform its obligations thereunder;
"Fourth Transoceanic" means Fourth Transoceanic Shipping Co.
Ltd., a subsidiary of the Company;
"Insurance Policy" means the Sellers' interest insurance in
respect of the vessel MERIDIAN in the amount of $35,000,000
evidenced by the Cover Note No. HB5997 issued by Willis Faber
Marine dated July 1, 1997.
"MERIDIAN" means the passenger vessel "MERIDIAN", the
subject of the MOA and owned by Fourth Transoceanic;
"Metro" means Metro Holdings Limited of Singapore; and
"MOA" means the Memorandum of Agreement dated February 21,
1997 made between Fourth Transoceanic and Metro in respect of the
vessel MERIDIAN; "Alternative MOA" means any memorandum of
agreement entered into pursuant to Section (c)(4) below.
(a) The Purchaser shall, as and from the Closing Date,
not interfere with, or override, the operation of the vessel
MERIDIAN by the existing (pre-Closing Date) marine management
personnel of the Company with a view to their ensuring that the
vessel MERIDIAN will be ready for delivery under the MOA on or
before the Cancelling Date.
(b) In the event that the vessel MERIDIAN suffers
breakdown or damage following the Closing Date the Purchaser
shall conduct itself in the manner described in (a) above to
enable the repair at its own cost and expense of such breakdown
or damage (including all replacements and additional work in
connection therewith) on or prior to the Cancelling Date and, in
any event, the completion of such repairs, replacements and
additional work as soon as reasonably practicable.
(c) In the event that:
(i) notwithstanding due performance by the
Purchaser of its obligations under Section 5.10(a) and (b)
above, the vessel MERIDIAN is not ready for delivery under
the MOA on or prior to the Cancelling Date and, as a result
thereof, the MOA is cancelled by Metro; or
(ii) Metro fails to perform its obligations
under the MOA to purchase the vessel MERIDIAN.
The following provisions shall apply:
(1) neither the Purchaser nor any of its
Subsidiaries or Affiliates shall have any
obligation to market the vessel MERIDIAN for
employment or otherwise, and, at the election of
Purchaser, the vessel MERIDIAN shall be taken out
of service and laid-up at such place and in such
manner as the Stockholders shall reasonably
require;
(2) all costs and expenses of maintaining,
operating, laying-up and insuring the vessel
MERIDIAN incurred after the date on which (c)
(i) or (ii) above occurs until the Alternative
Sale Date shall be indemnified (and paid upon
demand from time to time of the Purchaser) to the
Purchaser by the Stockholders (but this shall not
include any such costs and expenses payable by the
Purchaser under (b) above);
(3) in the event that Metro is in default of
its obligations under the MOA to purchase the
vessel MERIDIAN, the Stockholders shall be
entitled to conduct all arbitration and other
proceedings against Metro in the name of Fourth
Transoceanic and to take all such actions in
connection therewith as they shall determine, all
at their own cost and expense; the same procedure
shall apply in the case of default by any
purchaser under any Alternative MOA;
(4) the Stockholders shall use all
reasonable endeavors to sell the vessel MERIDIAN
to another purchaser and the Purchaser shall
procure all reasonable assistance in connection
therewith and shall procure that Fourth
Transoceanic enters into a memorandum of agreement
for such a sale in such terms and with such party
as the Stockholders shall reasonably require
(taking account customary market practice) but
which memorandum of agreement is no more onerous
to Fourth Transoceanic than the MOA but with no
obligation to provide crew assistance;
(5) in the event that a sale of the vessel
MERIDIAN has not been completed on or before the
date falling two years after the Closing Date, the
Stockholders (or a nominee for which they shall be
severally responsible) shall purchase the vessel
MERIDIAN on the same terms (other than as to
price) set out in Schedule 5.10 and the price
shall be calculated as set out in Section
5.10(c)(ii)(6) below;
(6) the purchase price referred to in
Section 5.10(c)(ii)(5) above shall be the net sale
proceeds which would have been received by Fourth
Transoceanic under the MOA had the vessel MERIDIAN
been purchased by Metro on or before the
Cancelling Date in accordance with the terms
thereof (i.e. after allowing for brokerage, dry-
docking, repairs and other costs which would have
been borne by Fourth Transoceanic or any
subsidiary of the Company in delivering the vessel
MERIDIAN to Metro under the MOA) plus interest in
such amount of net sale proceeds from October 31,
1997 up to (and including) the date of payment of
such amount at such rate (compounded semi-
annually) as the Purchaser shall from time to time
certify to the Stockholders to be its average cost
of bank-borrowing or (if greater and then only to
the extent of any borrowing in respect of as to
the Closing Date) the actual cost of such
borrowing in respect of the vessel MERIDIAN, less
the aggregate of:
- any net proceeds of the Insurance Policy then
received by the Company or any of its
Subsidiaries;
- any net proceeds of any arbitration or other
proceeding concluded against Metro under the
MOA or any other party under an Alternative
MOA then received by the Company or any of
its Subsidiaries; or
- any deposits (and interest accrued thereon
under the relevant MOA) retained by Fourth
Transoceanic under the MOA or any Alternative
MOA (together, the "Deductibles").
(7) in the event that the vessel MERIDIAN is
sold to a third party pursuant to an Alternative
MOA, the Stockholders shall, concurrently
therewith, pay to the Purchaser (in addition to
any amounts payable by them under Section
5.10(c)(ii)(2) above) an amount equal to that
calculated in accordance with Section
5.10(c)(ii)(6) above but including as an
additional Deductible the net sale proceeds
received by Fourth Transoceanic under the
Alternative MOA, and, if the Deductibles (as so
calculated) exceed the net sale proceeds plus
interest thereon as referred to in Section
5.10(c)(ii)(6), the amount of the excess shall be
paid to the Stockholders;
(d) The Stockholders shall, provided that they shall
have made payment in full under Sections 5.10(c)(ii)(6) and (7)
above, be entitled to:
(i) the proceeds of the Insurance Policy to
the extent not brought into the Deductibles for the purposes
of Sections 5.10(c)(ii)(6) or (7) above; and
(ii) the proceeds of any arbitration or other
proceeding against Metro and/or any other purchaser under an
Alternative MOA to the extent not brought into the
Deductibles for the purposes of Sections 5.10(c)(ii)(6) or
(7) above;
(e) If the vessel MERIDIAN is a total loss for the
purposes of the MOA, Fourth Transoceanic shall be entitled to
retain an amount equal to the net sale proceeds plus interest
thereon as referred to in Section 5.10(c)(ii)(6) above and costs
associated with the total loss, and Fourth Transoceanic and the
Stockholders shall equally divide any reamining amount of the
total loss insurance proceeds. If the vessel MERIDIAN is a total
loss after the Cancelling Date (but prior to the sale thereof to
a third party under an Alternative MOA or to the Stockholders (or
their nominee) under Section 5.10(c)(ii)(5) above, Fourth
Transoceanic shall be entitled to retain an amount equal to the
net sale proceeds plus interest thereon as referred to in Section
5.10(c)(ii)(6) above, and any surplus insurance proceeds shall be
paid to the Stockholders.
(f) As and from the Cancelling Date until the
Alternative Sale Date the Purchaser shall make available, at
cost, all services reasonably required by the Stockholders for
the maintenance, repair, lay-up, reactivation, drydocking and/or
general operation of the vessel MERIDIAN so as to enable the
vessel MERIDIAN to be sold under an Alternative MOA and/or to the
Stockholders (or their nominee) under Section 5.10(c)(ii)(5)
above.
(g) Until the Cancelling Date the Purchaser shall
procure that Fourth Transoceanic does everything reasonably
required by the Stockholders in connection with the MOA and the
delivery of the vessel MERIDIAN thereunder.
(h) Each Stockholder shall, in relation to its
respective several obligations to the Purchaser under this
Section 5.10, provide to the Purchaser the following securities:
(i) (in the case of Overseas), the guarantee
of its parent, Overseas Shipholding Group Inc., a Delaware
corporation, pursuant to the Guaranty described in Section
6.03(k); and
(ii) (in the case of Archinav) pledge of an
amount of Restricted Stock having an aggregate value, as of
the Closing Date, of $30,000,000 pursuant to the Stock
Pledge Agreement described in Section 6.03(j).
SECTION 5.11 Board Representation. For a period of seven
years following the Closing Date, each Stockholder shall be
entitled to nominate one representative to serve on the
Purchaser's Board of Directors, which representatives shall be
acceptable to the Purchaser in its reasonable judgment. Within
five Business Days following the Closing, the Purchaser shall
take such action as is reasonably necessary to cause such
representatives nominated by the Stockholders to become directors
of the Purchaser effective as of the Closing Date. The foregoing
notwithstanding, each Stockholder's rights set forth in this
Section 5.11 shall terminate in the event such Stockholder at any
time following the Closing is the record owner of less than 75%
of the number of shares which such Stockholder receives hereunder
(as adjusted for stock dividends, stock splits and combinations).
SECTION 5.12 Confidential Information Regarding the
Business. The Company and the Stockholders acknowledge that
Purchaser would be irreparably damaged if the Company's or any
Stockholder's confidential knowledge of the Business were
disclosed to or utilized on behalf of others in competition in
any material respect with the Business as the same is being
acquired by Purchaser. Accordingly, the Stockholders shall not,
and shall cause the Company and its Subsidiaries not to, disclose
any confidential or proprietary information relating to the
Business to any Person, or make use of any such confidential or
proprietary information for their own purpose or for the benefit
of any Person, except Purchaser.
SECTION 5.13 Sales and Transfer Taxes. Each of the
Purchaser, on the one hand, and the Stockholders, on the other
hand, shall pay 50% of any taxes and fees payable by reason of
the transfer and conveyance of the shares of Company Stock in
connection with the transactions contemplated hereby.
SECTION 5.14 Resignations. The Stockholders shall, to the
extent requested by the Purchaser, procure the resignations of
the directors of the Company effective as of the Closing Date.
SECTION 5.15 Further Information. Following the Closing,
each party will afford the other parties and their counsel and
accountants, during normal business hours, reasonable access to
the books, records and other data of the Company in its
possession with respect to periods prior to the Closing (other
than any books, records or other data such party reasonably
determines to be confidential or subject to attorney-client
privilege) and the right to make copies and extracts therefrom,
to the extent that such access may be reasonably required by the
requesting party (i) to facilitate the investigation, litigation
and final disposition of any claims which may have been or may be
made against any party that relate to the Company, or the
Business, or (ii) to facilitate the preparation of any of
Stockholder's tax returns.
SECTION 5.16 Further Action. Each of the parties hereto
shall use all reasonable efforts to take, or cause to be taken,
all appropriate action, do or cause to be done all things
reasonably necessary, proper or advisable under applicable Law,
and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and
consummate and make effective the transactions contemplated by
this Agreement.
ARTICLE VI
CONDITIONS
SECTION 6.01 Mutual Conditions. The respective
obligations of each party to consummate the transactions
contemplated by this Agreement shall be subject to the
fulfillment, at or prior to the Closing Date, of each of the
following conditions:
(a) HSR. The expiration or termination of any waiting
period (and any extension thereof) applicable to the consummation
of the transactions contemplated hereby under the HSR Act; and
(b) NYSE Listing. The New York Stock Exchange shall
have authorized, upon official notice of issuance, the Restricted
Stock.
SECTION 6.02 Conditions to Obligations of the
Stockholders. The obligations of the Stockholders to consummate
the transactions contemplated by this Agreement shall be subject
to the fulfillment, at or prior to the Closing Date, of each of
the following conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of the Purchaser contained in this
Agreement shall have been true and correct when made and shall be
true and correct in all material respects (except with respect to
representations and warranties that are qualified as to
materiality or material adverse effect, which representations and
warranties shall be true and correct in all respects, except for
any developments between the date hereof and the Closing Date,
with respect to the Purchaser and its Subsidiaries material
adverse effect shall be judged by the materiality standard stated
in Section 6.02(g)) on and as of the Closing Date, with the same
force and effect as if made as of the Closing Date, other than
such representations and warranties as are made as of another
date. The covenants and agreements contained in this Agreement
to be complied with by the Purchaser as of or before the Closing
Date shall have been complied with in all material respects, and
the Stockholders shall have received a certificate from the
Purchaser to such effect signed by an executive officer thereof;
(b) No Proceeding or Litigation. No Action shall have
been commenced by or before any Governmental Authority against
either the Company, the Stockholders or the Purchaser, seeking to
restrain or materially and adversely alter the transactions
contemplated by this Agreement which, in the reasonable, good
faith determination of the Stockholders is likely to render it
impossible or unlawful to consummate such transactions; provided,
however, that the provisions of this Section 6.02(b) shall not
apply if any of the Company or the Stockholders has directly or
indirectly solicited or encouraged any such Action;
(c) Resolutions. The Stockholders shall have received
a true and complete copy, certified by a duly authorized officer
of the Purchaser, of the resolutions duly and validly adopted by
the Board of Directors of the Purchaser evidencing its
authorization of the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby;
(d) Incumbency Certificate. The Stockholders shall
have received a certificate of the Secretary or a duly authorized
officer of the Purchaser certifying the names and signatures of
the officers of the Purchaser authorized to sign this Agreement
and the other documents to be delivered hereunder;
(e) Consideration. The Stockholders shall have
received payment of the Cash Consideration and delivery of the
Restricted Stock;
(f) Registration Rights Agreement. The Stockholders
shall have received a copy of the Amended and Restated
Registration Rights Agreement of the Purchaser, substantially in
the form of Exhibit 6.02(f) attached hereto, executed by the
Purchaser and the other parties thereto;
(g) Consents and Approvals. The Purchaser, the
Company and the Stockholders shall have received, each in form
and substance satisfactory to the Purchaser in its reasonable
good faith determination, all authorizations, consents, orders
and approvals of all Governmental Authorities and officials and
all third party consents set forth on Schedule 6.02(g);
(h) Release. The Company shall have executed and
delivered a release in favor of the Stockholders substantially in
the form of Exhibit 6.02(h) attached hereto; and
(i) Material Adverse Event. Since March 31, 1997, no
event or events shall have occurred which individually or in the
aggregate would reasonably be expected to have a material adverse
effect on the long-term fundamental business prospects of the
Purchaser, excluding such event or events as have a material
adverse impact on the cruise industry as a whole or the U.S. or
world economy generally.
SECTION 6.03 Conditions to Obligations of the Purchaser.
The obligations of the Purchaser to consummate the transactions
contemplated by this Agreement shall be subject to the
fulfillment, at or prior to the Closing Date, of each of the
following conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of the Stockholders contained in
this Agreement shall have been true and correct when made and
shall be true and correct in all material respects (except with
respect to representations and warranties that are qualified as
to materiality or Material Adverse Effect, which representations
and warranties shall be true and correct in all respects) on and
as of the Closing Date with the same force and effect as if made
as of the Closing Date, other than such representations and
warranties as are made as of another date. The covenants and
agreements contained in this Agreement to be complied with by the
Company and the Stockholders as of or before the Closing Date
shall have been complied with in all material respects, and the
Purchaser shall have received a certificate to such effect signed
by an executive officer of each of the Stockholders;
(b) No Proceeding or Litigation. No Action shall have
been commenced or threatened by or before any Governmental
Authority against any of the Stockholders the Company or the
Purchaser, seeking to restrain or materially and adversely alter
the transactions contemplated hereby which in the reasonable good
faith determination of the Purchaser is likely to render it
impossible or unlawful to consummate the transactions
contemplated by this Agreement or which could have a Material
Adverse Effect; provided, however, that the provisions of this
Section 6.03(b) shall not apply if the Purchaser has directly or
indirectly solicited or encouraged any such Action;
(c) Resolutions of the Company. The Purchaser shall
have received a true and complete copy, certified by the
Secretary or an Assistant Secretary of the Company, of the
resolutions duly and validly adopted by the Board of Directors of
the Company and the Stockholders evidencing their authorization
of the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby;
(d) Incumbency Certificate. The Purchaser shall have
received a certificate of the Secretary or an Assistant Secretary
of the Company and each Stockholder certifying the names and
signatures of the officers of the Company and each Stockholder
authorized to sign this Agreement and the other documents to be
delivered hereunder;
(e) Consents and Approvals. The Purchaser, the
Company and the Stockholders shall have received, each in form
and substance satisfactory to the Purchaser in its reasonable
good faith determination, all authorizations, consents, orders
and approvals of all Governmental Authorities and self regulatory
organizations and all third party consents set forth in Schedule
6.03(e);
(f) No Material Adverse Effect. Since the date of the
Interim Financial Statements, no event or events shall have
occurred, or be reasonably likely to occur, which, individually
or in the aggregate, have, or could reasonably be expected to
have, a Material Adverse Effect, excluding such events as have a
material adverse impact on the cruise industry as a whole or the
U.S. or world economy generally;
(g) Agreements with Stockholders. Except as set forth
on Schedule 6.03(g), all agreements between the Company or any
Subsidiary and a Stockholder or its Affiliates shall have been
terminated, with respect to the Company and its Subsidiaries, to
the Purchaser's reasonable satisfaction, and the Company and all
Subsidiaries shall have been released from all obligations under
such agreements;
(h) Releases. Each of the Stockholders shall have
executed and delivered a release in favor of the Company
substantially in the form of Exhibit 6.02(h) attached hereto;
(i) Registration Rights Agreement. The Purchaser
shall have received a copy of the Amended and Restated
Registration Rights Agreement of the Purchaser, executed by the
Stockholders;
(j) Stock Pledge Agreement. The Purchaser shall have
received a copy of the Stock Pledge Agreement, substantially in
the form of Exhibit 6.03(j) attached hereto, executed by
Archinav;
(k) Guaranty. The Purchaser shall have received of
the Guaranty, substantially in the form of Exhibit 6.03(k)
attached hereto, executed by Overseas Shipholding Group, Inc.;
(l) Stock Certificates. Delivery to the Purchaser of
certificates representing all of the Company Stock owned by the
Stockholders in accordance with Section 2.03 of this Agreement;
(m) Certificate of Ownership. Delivery to the
Purchaser of a certificate of ownership for each Vessel dated not
more than three days prior to the Closing Date and showing title
and recorded liens for each Vessel; and
(n) Classification Certificate. Delivery to the
Purchaser of a class maintained certificate for each Vessel,
dated no more than five days prior to the Closing.
<PAGE>
ARTICLE VII
TERMINATION AND WAIVER
SECTION 7.01 Termination. This Agreement may be
terminated at any time prior to the Closing Date:
(a) by either of the Stockholders or the Purchaser if
the Closing Date shall not have occurred by October 31, 1997;
provided, however, that the right to terminate this Agreement
under this Section 7.01(a) shall not be available to any party
whose willful failure to fulfill any obligation under this
Agreement shall have been the cause of, or shall have resulted
in, the failure of the Closing to occur on or prior to such date;
or
(b) by either of the Stockholders or the Purchaser in
the event that any Governmental Authority shall have issued an
order, decree or ruling or taken any other Action restraining,
enjoining or otherwise prohibiting the transactions contemplated
by this Agreement and such order, decree, ruling or other action
shall have become final and nonappealable; or
(c) by the mutual written consent of the Stockholders,
the Company and the Purchaser.
SECTION 7.02 Effect of Termination. In the event of
termination of this Agreement as provided in Section 7.01, this
Agreement shall forthwith become void and there shall be no
liability on the part of either party hereto except (a) as set
forth in Sections 5.03, 7.02 and 9.01 and (b) that nothing herein
shall relieve either party from liability for any breach of this
Agreement.
SECTION 7.03 Waiver. Either party to this Agreement may
(a) extend the time for the performance of any of the obligations
or other acts of the other party, (b) waive any inaccuracies in
the representations and warranties of the other party contained
herein or in any document delivered by the other party pursuant
hereto or (c) waive compliance with any of the agreements or
conditions of the other party contained herein. Any such
extension or waiver shall be valid only if set forth in an
instrument in writing signed by the party to be bound thereby.
Any waiver of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the
same term or condition, or a waiver of any other term or
condition, of this Agreement. The failure of any party to assert
any of its rights hereunder shall not constitute a waiver of any
of such rights.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01 Indemnification of Purchaser. (a) Subject to
the provisions of this Article VIII, Stockholders, on behalf of
themselves and their respective successors, hereby Severally (and
not jointly) agree to indemnify and hold harmless Purchaser and
its respective officers, directors, shareholders, partners,
employees, agents, attorneys, affiliates, successors,
predecessors and assigns (collectively, the "Purchaser
Indemnified Parties") from and against any and all losses,
obligations, liabilities, damages, claims, deficiencies, costs
and expenses (including, but not limited to, the amount of any
settlement entered into pursuant hereto and all reasonable legal
and other expenses incurred in connection with the investigation,
prosecution or defense of the matter) (collectively "Claims"),
which may be asserted against or sustained or incurred by the
Purchaser Indemnified Parties in connection with, arising out of,
or relating to any breach of any of the representations,
warranties, agreements and covenants made by Stockholders or the
Company herein and the Schedules and Exhibits hereto.
(b) The amount of any Claims for which indemnification
is provided under Section 8.01 shall be net of an amount equal to
the tax benefit, if any, attributable to such Claim. The
Purchaser agrees to pursue any rights to indemnification from a
third party and to insurance proceeds in good faith. In
addition, the Purchaser shall take, and cause each Purchaser
Indemnified Party to take, all reasonable steps to mitigate any
Claim upon becoming aware of any event which would reasonably be
expected to, or does, give rise thereto, including incurring
costs only to the minimum extent necessary to remedy the
occurrence which gives rise to such Claim.
SECTION 8.02 Procedure for Claims.
(a) Notice of Claim. Promptly, but in any event
within 30 days after obtaining knowledge of any claim or demand
which may give rise to, or could reasonably give rise to, a claim
for indemnification hereunder (referred to herein as an
"Indemnification Claim"), Purchaser shall give written notice to
Stockholders of such Indemnification Claim ("Notice of Claim").
A Notice of Claim shall be given with respect to all
Indemnification Claims; provided, however, that the failure to
give a timely Notice of Claim to Stockholders shall not relieve
Stockholders from any liability that they may have to the
Purchaser Indemnified Parties hereunder to the extent that
Stockholders are not materially prejudiced by such failure. The
Notice of Claim shall set forth the amount (or a reasonable
estimate) of the loss, damage or expense suffered, or which may
be suffered, by the Purchaser Indemnified Party as a result of
such Indemnification Claim and the aggregate amount of all
Indemnification Claims to date and a brief description of the
facts giving rise to such Indemnification Claim. Purchaser shall
furnish to Stockholders such information (in reasonable detail)
as Purchaser may have with respect to such Indemnification Claim
(including copies of any summons, complaint or other pleading
which may have been served on it and any written claim, demand,
invoice, billing or other document evidencing or asserting the
same).
(b) Third Party Claims.
(i) If the claim or demand set forth in the
Notice of Claim is a claim or demand asserted by a third party (a
"Third Party Claim"), Stockholders shall have fifteen days (or
such shorter period (but not less than ten days) if an answer or
other response or filing with respect to the pleadings served by
the third party is required prior to the fifteenth day) after the
date of receipt by Stockholders of the Notice of Claim (the
"Notice Date") to notify Purchaser in writing of the election by
Stockholders to defend the Third Party Claim on behalf of the
Purchaser Indemnified Parties.
(ii) Purchaser shall make available to
Stockholders and its agents and representatives all records and
other materials in Purchaser's possession which are reasonably
required in the defense of the Third Party Claim. In the event
that Stockholders dispute their obligation to indemnify the
Purchaser Indemnified Parties with respect to any Third Party
Claim, Stockholders shall not be required to pay the expenses
incurred in connection with the defense of such Claims unless and
until it is judicially determined that Stockholders are
responsible for such Claim. In the event that Stockholders
acknowledge their obligations to indemnify Purchaser Indemnified
Parties with respect to a Third Party Claim, Stockholders shall
pay any expenses payable in connection with the defense of the
Third Party Claim as they are incurred (whether incurred by
Purchaser or Stockholders).
(iii) If Stockholders have assumed control of the
defense, Stockholders may contest or settle the Third Party Claim
on such terms as Stockholders may choose, provided, that
Stockholders will not have the right, without Purchaser's prior
written consent, to settle any such claim if such settlement (A)
arises from or is part of any criminal action, suit or
proceeding, (B) contains a stipulation to, confession of judgment
with respect to, or admission or acknowledgement of, any
liability or wrongdoing on the part of any Purchaser Indemnified
Party, (C) relates to any foreign, Federal, state or local tax
matters, (D) provides for injunctive relief, or other relief
other than damages, which is binding on any Purchaser Indemnified
Party, or (E) does not fully release all Purchaser Indemnified
Parties with respect to the relevant Third Party Claim.
(iv) If Stockholders elect to defend a Third Party
Claim, the Purchaser Indemnified Parties shall have the right to
participate in the defense of the Third Party Claim, at the
Purchaser Indemnified Parties' expense (and without the right to
indemnification for such expense under this Agreement); provided,
however, that the reasonable fees and expenses of counsel
retained by the Purchaser Indemnified Parties shall be at the
expense of Stockholders if (A) the use of the counsel chosen by
Stockholders to represent the Purchaser Indemnified Parties would
present such counsel with a conflict of interest; (B) the parties
to such proceeding include both Purchaser Indemnified Parties and
Stockholders and there may be legal defenses available to
Purchaser Indemnified Parties which are different from or
additional to those available to Stockholders; (C) within ten
days after being advised by Stockholders of the identity of
counsel to be retained to represent Purchaser Indemnified
Parties, Purchaser shall have objected to the retention of such
counsel for valid reasons (which shall be stated in a written
notice to Stockholders), and Stockholders shall not have retained
different counsel reasonably satisfactory to Purchaser; or (iv)
Stockholders shall authorize the Purchaser Indemnified Parties to
retain separate counsel at the expense of Stockholders.
(v) If Stockholders elect to defend a Third Party
Claim, and do not defend a Third Party Claim in good faith, the
Purchaser Indemnified Parties shall have the right, in addition
to any other right or remedy it may have hereunder, at the sole
and exclusive expense of Stockholders, to defend such Third Party
Claim; provided, however, that such expenses shall be payable by
Stockholders only if and when such Third Party Claim becomes
payable.
(c) Cooperation in Defense. Purchaser shall cooperate
with Stockholders in the defense of Third Party Claims. Subject
to the foregoing, (i) the Purchaser Indemnified Parties shall not
have any obligation to participate in the defense of or to defend
any Third Party Claim and (ii) the Purchaser Indemnified Parties'
defense of or its participation in the defense of any Third Party
Claim shall not in any way diminish or lessen their right to
indemnification as provided in this Agreement.
SECTION 8.03 Indemnification of Stockholders. Subject to
the provisions of this Article VIII, the Purchaser agrees to
indemnify and hold harmless Stockholders, their officers,
directors, shareholders, employees, agents, attorneys,
affiliates, successors, predecessors and assigns (collectively,
the "Stockholder Indemnified Parties") from and against Claims
which may be asserted against or sustained or incurred by the
Stockholder Indemnified Parties in connection with, arising out
of, or relating to any breach of any of the representations,
warranties, agreements and covenants made by Purchaser herein and
the Schedules and Exhibits hereto. The procedures for
indemnification of the Stockholder Indemnified Parties by the
Purchaser shall be the same as those set forth in Section 8.02,
including the restriction on settling Third Party Claims set
forth in Section 8.02(b)(iii).
SECTION 8.04 Survival of Representations, Warranties and
Covenants.
(a) Each of the representations and warranties of the
parties contained in this Agreement (other than those set forth
in Sections 3.01, 3.04, 3.06, 3.08, 3.22(a) (only as to title of
the Vessels) and 3.25 and Sections 4.01 and 4.04, and any action
arising out of any thereof including, without limitation, any
cause of action for failure of any such representation to be true
when made or at the Closing, and the parties' covenants and
agreements set forth in Article V shall terminate and be of no
force and effect as of and shall not survive after the second
anniversary of the Closing (the "General Expiration Date"),
except that the expiration of such representations, warranties,
covenants and agreements shall not affect any party's right to
pursue any Claims (or any causes of action arising out of such
Claims) if such party has delivered a Notice of Claim with
respect to such claim prior to the General Expiration Date.
(b) Each of the representations and warranties set
forth in Section 3.25, and any action arising out of any thereof
including, without limitation, any cause of action for failure of
any such representation to be true when made or at the Closing,
and the indemnity obligations set forth herein in respect thereof
shall terminate and be of no force and effect as of and shall not
survive after thirty (30) days after the last day in which tax
may be validly assessed by the appropriate Governmental Authority
(including extensions) in respect of any period ending on or
prior to the Closing (the "Tax Expiration Date"), except that the
expiration of such representations and warranties and indemnity
obligations shall not affect any Purchaser Indemnified Party's
right to pursue any Claims (or any causes of action arising out
of such Claims) if such Purchaser Indemnified Party has delivered
a Notice of Claim with respect to such claim prior to the Tax
Expiration Date.
(c) Each of the representations and warranties of the
Stockholders contained in Sections 3.01, 3.04, 3.06, 3.08 and
3.22(a) (only as to title to the Vessels), of this Agreement, and
the representations and warranties of Purchaser contained in
Sections 4.01 and 4.04 of this Agreement and any action arising
out of any thereof including, without limitation, any cause of
action for failure of any such representation to be true when
made or at the Closing, shall survive without limitation. The
other provisions of this Agreement shall remain in effect after
the Closing in accordance with their terms.
(d) No indemnified party hereunder shall be entitled
to indemnification hereunder with respect to any Claims relating
to breaches of representations and warranties contained herein
until the amount of all such Claims suffered by such indemnified
party exceeds $5,000,000 in the aggregate (the "Deductible"),
whereupon such indemnified party shall be entitled to
indemnification hereunder from the indemnifying party for the
aggregate amount of all such Claims suffered by the indemnified
party, in excess of the Deductible. Notwithstanding the
foregoing, Claims relating to inaccuracies or breaches of any of
the representations, warranties contained in Sections 3.01, 3.04,
3.06, 3.08, 3.22(a) (only as to title to the Vessels), 4.01 and
4.04, shall not be subject to the Deductible.
(e) The total aggregate obligations of the
Stockholders on the one hand and the Purchaser on the other hand
for all Claims hereunder shall not exceed $100,000,000 (the
"Cap"). Notwithstanding the foregoing, (i) the total obligations
of (A) the Stockholders, in the aggregate, relating to
inaccuracies or breaches of representations and warranties
contained in Sections 3.01, 3.04, 3.06, 3.08, 3.22(a) (only as to
title to the Vessels) and (B) the Purchaser relating to
inaccuracies or breaches of representations and warranties
contained in Sections 4.01 and 4.04, in either case, shall not
exceed $515,000,000 and (ii) breach by the Stockholders of the
covenants set forth in Sections 5.09 and 5.10, or any Claims by
the Purchaser in connection therewith shall not be subject to any
limitation or liability of the Stockholders set forth herein and
shall not be counted against any such limitations.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01 Expenses. Except as otherwise specified in
this Agreement, all costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors
and accountants, incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing
shall have occurred; provided, however, that the amount of any
costs and expenses incurred by or on behalf of the Stockholders
which have been or are hereafter paid by the Company or any of
its Subsidiaries, shall be deducted from the Cash Consideration
payable to the Stockholders.
SECTION 9.02 Limitations on Representations. The
Stockholders and the Purchaser acknowledge that except for the
representations and warranties contained in this Agreement, no
party hereto has made any representation or warranty, expressed
or implied, with respect to (a) in the case of the Stockholders,
the Company, its Subsidiaries or the Business and (b) in the case
of the Purchaser, the Purchaser.
SECTION 9.03 Sole Remedy. The parties hereto acknowledge
and agree that, other than with respect to Claims for fraud, (a)
the remedies provided in Article VIII of this Agreement shall be
the parties' sole and exclusive remedy with respect to the
subject matter of this Agreement and (b) in no event shall any
party hereto be entitled to receive punitive damages with respect
to claims brought hereunder.
SECTION 9.04 Notices. All notices, requests, claims,
demands and other communications hereunder shall be in writing
and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by
international courier service, by cable, by telecopy, by
telegram, by telex to the respective parties at the following
addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section
9.04):
(a) if to the Stockholders:
Archinav Holdings, Inc.
95 Akti Miaouli
GR 185 38 Piraeus
GREECE
Telecopy: 011-301-229-0497
Attention: M.G. Skordias
with a copy to:
Watson, Farley & Williams
15 Appold Street
London EC2A 2HD
ENGLAND
Telecopy: 011-441-71-814-8141
Attention: Alastair Farley, Esq.
<PAGE>
Overseas Cruiseship, Inc.
1114 Avenue of the Americas
New York, New York 10036
USA
Telecopy: 212/578-1794
Attention: Robert N. Cowen, Esq.
with a copy to:
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
USA
Telecopy: 212/969-2900
Attention: Stanley Komaroff, Esq.
(b) if to the Purchaser:
Royal Caribbean Cruises Ltd.
1050 Caribbean Way
Miami, Florida 33132
USA
Telecopy: 305/539-0562
Attention: General Counsel
with copies to:
Neal, Gerber & Eisenberg
Two North LaSalle Street
Suite 2200
Chicago, Illinois 60602
USA
Telecopy: 312/269-1747
Attention: Charles Evans Gerber, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telecopy: 212/450-5648
Attention: Jack J. McCarthy, Jr., Esq.
SECTION 9.05 Public Announcements. Except as required by
law, no party to this Agreement shall make, or cause to be made,
any press release or public announcement in respect of this
Agreement or the transactions contemplated hereby without the
prior written consent of the other party without making a good
faith effort to consult with the other party. The parties shall
cooperate as to the timing and contents of any such press release
or public announcement.
SECTION 9.06 Headings. The descriptive headings contained
in this Agreement are for convenience of reference only and shall
not affect in any way the meaning or interpretation of this
Agreement.
SECTION 9.07 Severability. If any term or other provision
of this Agreement is invalid, illegal or incapable of being
enforced by any Law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent
possible.
SECTION 9.08 Entire Agreement. This Agreement constitutes
the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof and supersedes all prior
agreements and undertakings, both written and oral, between the
Company and the Purchaser with respect to the subject matter
hereof and thereof.
SECTION 9.09 Assignment. This Agreement may not be
assigned by operation of law or otherwise without the express
written consent of the Stockholders and the Purchaser (which
consent may be granted or withheld in the sole discretion of the
Stockholders or the Purchaser).
SECTION 9.10 Amendment. This Agreement may not be amended
or modified except (a) by an instrument in writing signed by, or
on behalf of, each of the Stockholders and the Purchaser or (b)
by a waiver in accordance with Section 7.03.
SECTION 9.11 Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of
New York, without regard to the conflict of laws principles
thereof.
SECTION 9.12 Consent to Jurisdiction. Each of the parties
to this Agreement hereby submits to the exclusive jurisdiction of
the courts of England in respect of the interpretation and
enforcement of the provisions of this Agreement, and hereby
waives, and agrees not to commence any action in any other
jurisdiction and not to assert, as a defense in any action, suit
or proceeding in respect of the interpretation or enforcement of
this Agreement, that it is not subject thereto or that such
action, suit or proceeding may not be brought or is not
maintainable in said courts or that its property is exempt or
immune from execution, that the suit, action or proceedings
brought in an inconvenient forum, or that the venue of the suit,
action or proceeding is improper. The Purchaser hereby
irrevocably and unconditionally appoints WFW Legal Services
Limited at its registered office for the time being, currently 15
Appold Street, London EC2A 2HB as its agent for service of
process before such courts. Within five days of the date hereof,
each of Archinav and Overseas shall (a) appoint a registered
agent for service of process before such courts, and (b) notify
the Purchaser in writing of such appointment.
SECTION 9.13 No Third Party Beneficiaries. Nothing in
this Agreement is intended, nor shall it be construed, to confer
any rights or benefits upon any Person other than the parties
hereto and, solely to the extent provided in Article VIII, the
other Indemnified Parties referred to therein, and no other
Person shall have any rights or remedies hereunder.
SECTION 9.14 Counterparts. This Agreement may be executed
in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall
constitute one and the same agreement.
[REMAINDER OF PAGE IS INTENTIONALLY LEFT BLANK]<PAGE>
IN WITNESS WHEREOF, the Company, the Purchaser and the
Stockholders have caused this Agreement to be executed as of the
date first written above by their respective officers thereunto
duly authorized.
ARCHINAV HOLDINGS, LTD.
By: s/___________________________
Name:
Title:
OVERSEAS CRUISESHIP, INC.
By: s/__________________________
Name:
Title:
CELEBRITY CRUISE LINES, INC.
By: s/__________________________
Name:
Title:
ROYAL CARIBBEAN CRUISES LTD.
By: s/____________________________
Name:
Title:
<PAGE>
LIST OF EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit 2.02 - Stockholder Wire Transfer Instructions,
Allocation Percentages
Exhibit 5.09 - Form of Purchase Agreement for Vessels
AMERIKANIS and BRITANIS
Exhibit 6.02(f) - Form of Registration Rights Agreement
Exhibit 6.02(h) - Form of Mutual General Release Agreement
Exhibit 6.03(j) - Form of Stock Pledge Agreement
Exhibit 6.03(k) - Form of Guaranty
SCHEDULES
Schedule 3.03 - Governmental/Regulatory Consents and
Approvals
Schedule 3.08(a) - Capital Stock of the Company -
Redemption Obligations, Etc.
Schedule 3.08(b) - Capital Stock of the Company - Ownership
Schedule 3.09(a) - Subsidiaries - Identification
Schedule 3.09(c) - Subsidiaries - Capitalization
Schedule 3.09(d) - Subsidiaries - Options, Etc.
Schedule 3.09(f) - Subsidiaries - Partnerships and Joint
Ventures
Schedule 3.09(g) - Subsidiaries - Stockholder Agreements,
Etc.
Schedule 3.10 - Material Conflicts
Schedule 3.11 - Consents
Schedule 3.13 - Material Undisclosed Liabilities
Schedule 3.14 - Exceptions to Conduct in the Ordinary Course
Representation
Schedule 3.14(iii) - Exceptions to Conduct in the Ordinary
Course Representation - Capital
Expenditures
Schedule 3.14(vii) - Exceptions to Conduct in the Ordinary
Course Representation - Compensation
Schedule 3.15 - Litigation
Schedule 3.16 - Related Party Transactions
Schedule 3.17 - Exceptions to Compliance with Laws
Representation
Schedule 3.18(a) - Environmental Matters - Compliance with
Environmental Laws
Schedule 3.18(b) - Environmental Matters - Environmental
Claims
Schedule 3.19(a) - Material Contracts - Validity,
Enforceability, Defaults
Schedule 3.19(b) - Material Contracts - Third Party
Defaults
Schedule 3.19(c) - Material Contracts - Preferential
Contracts
Schedule 3.20 - Intellectual Property
Schedule 3.22(a) - Assets - Exceptions to Title
Schedule 3.22(c) - Assets - Vessels
Schedule 3.25(a) - Taxes - Returns and Reports
Schedule 3.25(b) - Taxes - Extensions of Statute of
Limitations
Schedule 3.25(e) - Taxes - Section 883
Schedule 4.05 - Litigation
Schedule 4.09 - Exceptions to Compliance with Laws
Representation
Schedule 5.01(a) - Conduct of Business Covenant -
Exceptions to Ordinary Course
Schedule 5.01(b) - Conduct of Business Covenant -
Exceptions to Ordinary Course
Representation
Schedule 5.10 - Terms of purchase of Vessel MERIDIAN
Schedule 6.02(h) - Conditions to Stockholders' Obligations
- Required Consents and Approvals
Schedule 6.03(e) - Conditions to Purchaser's Obligations -
Required Consents and Approvals
Schedule 6.03(g) - Conditions to Purchaser's Obligations -
Agreements with Stockholders<PAGE>
ANNEX A
Definitions
As used in this Agreement, the following terms shall have
the meanings indicated:
"Action" means any claim, action, suit, arbitration,
inquiry, proceeding or investigation by or before any
Governmental Authority.
"Affiliate" means, with respect to any specified Person, any
other Person that directly or indirectly through one or more
intermediaries controls, is controlled by, or is under common
control with, such specified Person.
"Agreement" or "this Agreement" means this Stock Purchase
Agreement, dated as of July 2, 1997, among the Stockholders, the
Company and the Purchaser (including the Exhibits and Annex
hereto and the Disclosure Schedule) and all amendments hereto
made in accordance with the provisions of Section 9.10.
"Business" means the business of owning and operating a
cruise line business under the names "Celebrity Cruises" and
"Fantasy Cruises" and related activities as currently conducted
by the Company and its Subsidiaries.
"Business Day" means any day that is not a Saturday, a
Sunday or other day on which banks are required or authorized by
law to be closed in New York, London, Paris and Athens.
"CI" means Cayman Island Dollars.
"Code" means the Internal Revenue Code of 1986, as amended
through the date hereof.
"Company Stock" means the Class C ordinary shares of the
Company, par value CI $10.00 per share, and the Class O ordinary
shares, par value CI $10.00 per share.
"Company's Accountants" means either or both of (a) Moore
Stephens and (b) Ernst & Young, independent accountants of the
Company.
"Confidentiality Agreement" means the letter agreement dated
as of June 18, 1997 between the Company and the Purchaser.
"Contaminant" shall mean substances, whether waste
materials, raw materials, finished products or any other
material, which are regulated under any Environmental Law,
including, but not limited to, petroleum or any by-products or
fractions thereof, any form of natural gas, asbestos,
polychlorinated biphenyls ("PCBs"), radon and other radioactive
substances, infectious, carcinogenic, mutagenic or etiologic
agents, pesticides, defoliants, explosives, flammables,
corrosives, urea formaldehyde, hazardous substances as defined by
CERCLA or any other regulated material or regulated substance
which constitutes a material health or safety hazard or
environmental hazard to any Person, property or natural resource.
"Control" (including the terms "controlled by" and "under
common control with"), with respect to the relationship between
or among two or more Persons, means the possession, directly or
indirectly or as trustee or executor, of the power to direct or
cause the direction of the affairs or management of a Person,
whether through the ownership of voting securities, as trustee or
executor, by contract or otherwise, including, without
limitation, the ownership. directly or indirectly of securities
having the power to elect a majority of the board of directors or
similar body governing the affairs of such Person.
"Disclosure Schedule" means the Disclosure Schedule dated as
of the date hereof, prepared by the Stockholders and the Company
and delivered to the Purchaser or prepared by the Purchaser and
delivered to the Stockholders. All references to "Schedule" set
forth herein shall refer to schedules which constitute a part of
the Disclosure Schedule.
"Encumbrance" means any security interest, pledge, mortgage,
lien (including, without limitation, environmental and tax
liens), charge, encumbrance, adverse claim, preferential
arrangement or restriction of any kind, including, without
limitation, any restriction on the use, voting, transfer, receipt
of income or other exercise of any attributes of ownership.
"Environmental Claim" shall mean any written notice of
violation, claim, demand, abatement and/or other order
(conditional or otherwise) by any Governmental Authority or any
Person to or against the Company or its Subsidiaries for personal
injury (including sickness, disease or death), tangible or
intangible property damage, damage to the environment, nuisance,
trespass, pollution, contamination, other adverse effects on the
environment, clean-up costs, remediation, removal, other response
costs (which shall include, but not be limited to, costs to come
into compliance with Environmental Laws), or investigation costs
(including, but not be limited to, fees of consultants, counsel
and other experts in connection with any environmental
investigation, testing, audits or studies), and/or fines,
penalties, losses, liabilities (including any actual or punitive
damages under any statutory or common law cause of action,
regardless of whether the liabilities are imposed through
operation of strict liability or otherwise), resulting from or
based upon (a) the existence, or the continuation of the
existence, of a Release or threatened Release (including, but not
be limited to, sudden or non-sudden, accidental or non-accidental
Releases) of, or exposure to, any Contaminant, (b) the
transportation, storage, treatment, disposal, generation,
recycling, reclamation, use or other handling of any Contaminants
in connection with Seller's operations that are regulated under
the Environmental Laws or (c) the violation, or alleged
violation, by the Company or any of its Subsidiaries of any
Environmental Laws or Environmental Permits.
"Environmental Laws" shall mean any applicable laws relating
to the environment, safety, human health or the regulation of or
imposition of standards of conduct concerning discharges,
emissions, Releases or threatened Releases of noises, odors or
any pollutants, Contaminants into ambient air, water or land, or
otherwise relating to the manufacture, processing, generation,
distribution, use, treatment, storage, disposal, cleanup,
transport or handling of pollutants or Contaminants ("Regulated
Activity"), including, but not limited to, International
Convention for the Prevention of Pollution from Ships, as amended
and implemented by various countries including the United States
("MARPOL"), the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Sec.9601 et seq.)
("CERCLA"), the Hazardous Material Transportation Act (49 U.S.C.
Sec.1801 et seq.), the Resource Conservation and Recovery Act (42
U.S.C. Sec.6901 et seq.), the Clean Water Act (33 U.S.C. Sec.1251
et seq.), the Toxic Substances Control Act (15 U.S.C. Sec.2601 et
seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7
U.S.C. Sec.1361 et seq.), the Emergency Planning and Community
Right to Know Act (42 U.S.C. Sec.1101 et seq.), the Safe Drinking
Water Act (42 U.S.C. Sec.300f et seq.), the Clean Air Act (42
U.S.C. Sec.7401 et seq.), the Occupational Safety and Health Act
(29 U.S.C. Sec.651 et seq.), the Pollution Prevention Act (42
U.S.C. Sec.13101 et seq.) and the Oil Pollution Act (33 U.S.C.
Sec.2701 et seq.), as such laws are amended or supplemented, and
any analogous state, local or foreign laws and all rules, orders
and regulations promulgated thereunder, and any common law cause
of action relating to the environment, safety, human health or
any Regulated Activity.
"Environmental Matters" shall mean any past or presently
existing state of facts or condition of soil, land (surface or
subsurface), air, water, groundwater, sediments, or other
environmental media, including the Release of any Contaminant
over time from any existing location to another, which has given
or is reasonably likely to give rise to an Environmental Claim
which affects or may affect in any way among other things any
real property leased or occupied by the Company or any of its
Subsidiaries or the sale, use or occupancy thereof by Purchaser
or its successors in title or interest.
"Environmental Permit" shall mean any written permit,
approval, authorization, license, variance or permission required
from a Governmental Authority having jurisdiction under any
applicable Environmental Law.
"GAAP" means United States generally accepted accounting
principles and practices as in effect during the relevant period
and applied consistently throughout the periods involved.
"Governmental Authority" means any United States federal,
state or local or any foreign government, governmental,
regulatory or administrative authority, agency or commission or
any court, tribunal, or judicial or arbitral body.
"Governmental Order" means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered
by or with any Governmental Authority.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, and the rules and regulations
promulgated thereunder.
"Indebtedness" means, with respect to any Person, (a) all
indebtedness of such Person, whether or not contingent, for
borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services, (c) all
obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or
sale of such property), (e) all obligations of such Person as
lessee under leases that have been or should be, in accordance
with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person under acceptance, letter
of credit or similar facilities, (g) all obligations of such
Person to purchase, redeem, retire, defease or otherwise acquire
for value any capital stock of such Person or any warrants,
rights or options to acquire such capital stock, valued, in the
case of redeemable preferred stock, at the greater of its
voluntary or involuntary liquidation preference plus accrued and
unpaid dividends, (h) all Indebtedness of others referred to in
clauses (a) through (f) above guaranteed directly or indirectly
in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (i) to pay or
purchase such Indebtedness or to advance or supply funds for the
payment or purchase of such Indebtedness, (ii) to purchase, sell
or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to
make payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, (iii) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay
for property or services irrespective of whether such property is
received or such services are rendered) or (iv) otherwise to
assure a creditor against loss, and (i) all Indebtedness referred
to in clauses (a) through (f) above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Encumbrance on property
(including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness.
"Intellectual Property" means any and all of the Company's
and each Subsidiary's right, title and interest in and to United
States and foreign patents, copyrights, trade and service names
and marks, whether or not registered, pending, issued or applied
for; technical knowledge; works, processes and designs; hardware;
software (in source code and object code form, including all
related annotations and listings); inventions; trade secrets and
other intellectual property rights; all things authored, made for
hire, discovered, developed, designed or acquired by the Company
and each of its Subsidiaries or, to the extent that the Company
or any of its Subsidiaries has any right, title or interest
thereto, any of their respective agents, contractors and
employees in any stage of development, regardless of whether any
or all of the foregoing constitutes copyrightable or patentable
subject matter or is in tangible or intangible form; and all
embodiments, expressions, representations, fruits and products of
any of the foregoing.
"Interim Financial Statements" has the meaning specified in
Section 3.12(a).
"IRS" means the Internal Revenue Service of the United
States or any successor thereto.
"Knowledge of the Stockholders" or "to the Stockholders'
knowledge" and similar references to the knowledge of the
Stockholders shall mean the actual knowledge after due inquiry of
all executive officers and senior managers of the Company and its
Subsidiaries.
"Law" means any federal, state, local or foreign statute,
law, ordinance, regulation, rule, code, order, other requirement
or rule of law and international conventions and treaties.
"Leased Real Property" means the real property leased by the
Company or any Subsidiary, as tenant, together with, to the
extent leased by the Company or any Subsidiary, all buildings and
other structures, facilities or improvements currently or
hereafter located thereon, all fixtures, systems, equipment and
items of personal property of the Company or any Subsidiary
attached or appurtenant thereto, and all easements, licenses,
rights and appurtenances relating to the foregoing.
"Liabilities" means any and all debts, liabilities and
obligations, whether accrued or fixed, absolute or contingent,
matured or unmatured or determined or determinable, including,
without limitation, those arising under any Law (including,
without limitation, any Environmental Law), Action or
Governmental Order and those arising under any contract,
agreement, arrangement, commitment or undertaking.
"Material Adverse Effect" means any circumstance, change in,
or effect on the Business, the Company or any Subsidiary that,
individually or in the aggregate with any other circumstances,
changes in, or effects on, the Business, the Company or any
Subsidiary: (a) is, or could reasonably be expected to be,
materially adverse to the business, operations, assets or
Liabilities, results of operations or the condition (financial or
otherwise) of or the Company and its Subsidiaries, taken as a
whole, (b) could reasonably be expected to materially adversely
affect the ability of the Purchaser, the Company or any
Subsidiary to operate or conduct the Business in the manner in
which it is currently operated or conducted by the Company and
the Subsidiaries or (c) could reasonably be expected to
materially adversely affect the validity or enforceability of
this Agreement or any of the documents to be delivered pursuant
hereto (the "Transaction Documents") by the Company or the
Stockholders and the consummation of the transactions
contemplated hereby and thereby.
"Permitted Encumbrances" means such of the following as to
which no enforcement, collection, execution, levy or foreclosure
proceeding shall have been commenced: (a) liens for taxes,
assessments and governmental charges or levies not yet due and
payable or which are being contested in good faith, (b)
Encumbrances imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's liens and other similar
liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 90
days or which are being contested in good faith, (c) pledges or
deposits to secure obligations under workers' compensation laws
or similar legislation or to secure public or statutory
obligations, (d) immaterial survey exceptions, reciprocal
easement agreements and other customary encumbrances on title to
real property that (i) were not incurred in connection with any
Indebtedness, (ii) do not render title to the property encumbered
thereby unmarketable and (iii) do not, individually or in the
aggregate, materially adversely affect the value or use of such
property for its current and anticipated purposes and (e)
Encumbrances described on Schedule 1.01.
"Person" means any individual, partnership, firm,
corporation, limited liability company, association, trust,
unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under
Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
"Regulations" means the Treasury Regulations (including
Temporary Regulations) promulgated by the United States
Department of Treasury with respect to the Code or other federal
tax statutes.
"Related Party" means (i) any current or former officer,
director, key employee, or shareholder of the Company or any of
its Subsidiaries (or, with respect to any of the foregoing, any
member of his or her family or any Person in which he or she or
any member of his or her family has an interest, or of which he
or she or any member of his or her family is an officer,
director, general partner or trustee) or (ii) any other Person
which directly or indirectly controls, is controlled by or is
under common control with the Company or any of its Subsidiaries
or any Stockholder.
"Release" shall mean any release, spill, emission, leaking,
pumping, injection, abandonment, deposit, disposal, discharge,
dispersal, leaching or migration of Contaminants (including, but
not limited to, Contaminants in barrels, drums or other
containers) into the environment, including the movement of
Contaminants through, on, under or in the air, soil, subsurface
strata, surface water or ground water.
"Remedial Action" shall mean all actions required to (a)
clean up, remove, treat, minimize the effect of or in any other
way address Contaminants in the indoor or outdoor environment;
(b) prevent the Release or threat of Release or minimize the
further Release of Contaminants so they do not migrate or
endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment; or (c) perform pre-remedial
studies and investigations and post-remedial monitoring and care
in respect of actions contemplated in the preceding clauses (a)
and (b).
"Severally" means, with respect to any claim for
indemnification pursuant to Section 8.01, that Archinav shall be
responsible only for 51% of any indemnifiable claims and Overseas
only for 49% of any indemnifiable claims, and the Purchaser
agrees not to seek to recover a greater percentage from either
Stockholder.
"Subsidiary" means as to any Person, a corporation,
partnership, or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation,
partnership, or other entity are at the time owned, or the
management of which is otherwise controlled, directly or
indirectly, through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Company. For the purposes
of this Agreement, Celebrity Catering Services Partnership, a
Liberian partnership, shall be deemed to be a Subsidiary of the
Company.
"Tangible Personal Property" means machinery, equipment,
tools, supplies, furniture, fixtures, accessories, personalty,
leasehold improvements, vessels, vehicles, rolling stock and
other tangible personal property used in the Business or owned or
leased by the Company or any Subsidiary.
"Tax" or "Taxes" means any and all taxes, fees, levies,
duties, tariffs, imposts, and other charges of any kind (together
with any and all interest, penalties, additions to tax and
additional amounts imposed with respect thereto) imposed by any
government or taxing authority, including, without limitation:
taxes or other charges on or with respect to income, franchises,
windfall or other profits, gross receipts, property, sales, use,
capital stock, payroll, employment, social security, workers'
compensation, unemployment compensation, or net worth; taxes or
other charges in the nature of excise, withholding, ad valorem,
stamp, transfer, value added, or gains taxes; license,
registration and documentation fees; and customs duties, tariffs,
and similar charges.
"Vessels" means the following vessels owned and operated by
the Company and its Subsidiaries, (a) the CENTURY, (b) the
HORIZON, (c) the MERIDIAN, (d) the GALAXY and (e) the ZENITH.<PAGE>
STOCK PURCHASE AGREEMENT
Among
ARCHINAV HOLDINGS, LTD.,
OVERSEAS CRUISESHIP, INC.,
CELEBRITY CRUISE LINES, INC.
and
ROYAL CARIBBEAN CRUISES LTD.
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I DEFINITIONS
1.01. Certain Defined Terms . . . . . . . . . . . . . . 1
1.02. Other Defined Terms . . . . . . . . . . . . . . . 1
1.03. Dollars . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II SALE AND PURCHASE OF SHARES
2.01. Sale and Purchase of Shares . . . . . . . . . . . 3
2.02. Payment of Purchase Price; Transfer Restriction . 3
2.03. Delivery of Shares. . . . . . . . . . . . . . . . 3
2.04. Closing; Closing Date.. . . . . . . . . . . . . . 4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE
STOCKHOLDERS
3.01. Organization and Authority. . . . . . . . . . . . 4
3.02. No Conflict; Consents . . . . . . . . . . . . . . 5
3.03. Governmental/Regulatory Consents and Approvals. . 5
3.04. Title to Company Stock. . . . . . . . . . . . . . 5
3.05. Investment Intent . . . . . . . . . . . . . . . . 5
3.06. Authority of the Company. . . . . . . . . . . . . 7
3.07. Organization and Qualification of the Company . . 7
3.08. Capital Stock of the Company. . . . . . . . . . . 7
3.09. Subsidiaries. . . . . . . . . . . . . . . . . . . 8
3.10. No Material Conflicts; Consents . . . . . . . . . 9
3.11. Governmental/Regulatory Consents and Approvals. 10
3.12. Financial Information; Books and Records. . . . 10
3.13. No Material Undisclosed Liabilities . . . . . . 10
3.14. Conduct in the Ordinary Course; Absence of
Certain Changes, Events and Conditions. . . . . 11
3.15. Litigation. . . . . . . . . . . . . . . . . . . 12
3.16. Related Party Transactions. . . . . . . . . . . 13
3.17. Compliance with Laws. . . . . . . . . . . . . . 13
3.18. Environmental Matters.. . . . . . . . . . . . . 13
3.19. Material Contracts. . . . . . . . . . . . . . . 13
3.20. Intellectual Property . . . . . . . . . . . . . 14
3.21. Real Property . . . . . . . . . . . . . . . . . 14
3.22. Assets. . . . . . . . . . . . . . . . . . . . . 14
3.23. Employee Benefit Matters. . . . . . . . . . . . 15
3.24. Labor Matters . . . . . . . . . . . . . . . . . 17
3.25. Taxes . . . . . . . . . . . . . . . . . . . . . 17
3.26. Material Adverse Events . . . . . . . . . . . . 18
3.27. Response to Due Diligence Requests. . . . . . . 18
3.28. Brokers, Finders, Etc.. . . . . . . . . . . . . 19
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
4.01. Organization and Authority of the Purchaser . . 19
4.02. No Conflict; Consents . . . . . . . . . . . . . 20
4.03. Governmental/Regulatory Consents and Approvals. 20
4.04. Capital Stock of the Purchaser. . . . . . . . . 20
4.05. Litigation. . . . . . . . . . . . . . . . . . . 21
4.06. SEC Filings . . . . . . . . . . . . . . . . . . 21
4.07. Financial Statements. . . . . . . . . . . . . . 22
4.08. Conduct in the Ordinary Course. . . . . . . . . 22
4.09. Compliance with Laws. . . . . . . . . . . . . . 22
4.10. Purchaser's Tax Status. . . . . . . . . . . . . 22
4.11. Investment. . . . . . . . . . . . . . . . . . . 22
4.12. Brokers . . . . . . . . . . . . . . . . . . . . 22
4.13. Available Financing . . . . . . . . . . . . . . 22
ARTICLE V ADDITIONAL AGREEMENTS
5.01. Conduct of Business Prior to the Closing. . . . 23
5.02. Access to Information . . . . . . . . . . . . . 23
5.03. Purchaser Confidentiality . . . . . . . . . . . 24
5.04. Regulatory and Other Authorizations; Notices
and Consents. . . . . . . . . . . . . . . . . . 24
5.05. No Solicitation . . . . . . . . . . . . . . . . 25
5.06. Stockholder Supplements . . . . . . . . . . . . 25
5.07. Purchaser Supplements . . . . . . . . . . . . . 26
5.08 Listing Application . . . . . . . . . . . . . . . 26
5.09 Vessels AMERIKANIS and BRITANIS . . . . . . . . . 26
5.10. Vessel MERIDIAN . . . . . . . . . . . . . . . . 26
5.11. Board Representation. . . . . . . . . . . . . . 30
5.12. Confidential Information Regarding the Business 30
5.13. Sales and Transfer Taxes. . . . . . . . . . . . 30
5.14. Resignations. . . . . . . . . . . . . . . . . . 31
5.15. Further Information . . . . . . . . . . . . . . 31
5.16. Further Action. . . . . . . . . . . . . . . . . 31
ARTICLE VI CONDITIONS
6.01. Mutual Conditions . . . . . . . . . . . . . . . 31
6.02. Conditions to Obligations of the Stockholders . 31
6.03. Conditions to Obligations of the Purchaser. . . 33
ARTICLE VII TERMINATION AND WAIVER
7.01. Termination . . . . . . . . . . . . . . . . . . 35
7.02. Effect of Termination . . . . . . . . . . . . . 35
7.03. Waiver. . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VIII INDEMNIFICATION
8.01. Indemnification of Purchaser. . . . . . . . . . 35
8.02. Procedure for Claims. . . . . . . . . . . . . . 36
8.03. Indemnification of Stockholders . . . . . . . . 38
8.04. Survival of Representations, Warranties
and Covenants . . . . . . . . . . . . . . . . . 38
ARTICLE IX GENERAL PROVISIONS
9.01. Expenses. . . . . . . . . . . . . . . . . . . . 39
9.02. Limitations on Representations. . . . . . . . . 40
9.03. Sole Remedy . . . . . . . . . . . . . . . . . . 40
9.04. Notices . . . . . . . . . . . . . . . . . . . . 40
9.05. Public Announcements. . . . . . . . . . . . . . 41
9.06. Headings. . . . . . . . . . . . . . . . . . . . 42
9.07. Severability. . . . . . . . . . . . . . . . . . 42
9.08. Entire Agreement. . . . . . . . . . . . . . . . 42
9.09. Assignment. . . . . . . . . . . . . . . . . . . 42
9.10. Amendment . . . . . . . . . . . . . . . . . . . 42
9.11. Governing Law . . . . . . . . . . . . . . . . . 42
9.12. Consent to Jurisdiction.. . . . . . . . . . . . 42
9.13. No Third Party Beneficiaries. . . . . . . . . . 43
9.14. Counterparts. . . . . . . . . . . . . . . . . . 43
SCHEDULES. . . . . . . . . . . . . . . . . . . . . . . . . . .S-1
ANNEX A - Definitions. . . . . . . . . . . . . . . . . . . . .A-1
EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . .E-1<PAGE>
_________________________________________________________________
STOCK PURCHASE AGREEMENT
Among
ARCHINAV HOLDINGS, LTD.,
OVERSEAS CRUISESHIP, INC.,
CELEBRITY CRUISE LINES, INC.
and
ROYAL CARIBBEAN CRUISES LTD.
Dated July 2, 1997
_________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of ___________, 1997
(this "Agreement"), among Royal Caribbean Cruises Ltd., a
Liberian corporation (the "Company"), A. Wilhelmsen 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 S-8, S-4 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)
<PAGE>
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:
A. WILHELMSEN 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/________________________
Carlis E. Chisholm,
Manager, Trust Department
<PAGE>
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]
<PAGE>
SCHEDULE A
Royal Caribbean Cruises Ltd.
1050 Caribbean Way
Miami, Florida 33132
USA
Attention: Richard D. Fain
A. Wilhelmsen AS.
P.O. Box 1583
Vika
N-0118 Oslo, Norway
Attention: Arne Wilhelmsen
Cruise Associates
c/o Canadian Imperial Bank
of Commerce Trust Company (Bahamas) Limited, as
Trustee of Settlement T-577
P.O. Box N-3933
Nassau, Bahamas
Attention: Carlis E. Chisholm
Monument Capital Corporation
Corner House
Parliament and Church Streets
Hamilton, Bermuda
Archinav Holdings Ltd.
Chandris House
95 Akti Miaouli
GR 185 38 Piraeus
Greece
Attention: M.G. Skordias
Overseas Cruiseship, Inc.
1114 Avenue of the Americas
New York, New York 10036
USA
Attention: Robert N. Cowen, Esq.<PAGE>
================================================================
__________________
REGISTRATION RIGHTS AGREEMENT
__________________
Among
ROYAL CARIBBEAN CRUISES LTD.,
A. WILHELMSEN AS.,
CRUISE ASSOCIATES,
MONUMENT CAPITAL CORPORATION,
ARCHINAV HOLDINGS, LTD.
and
OVERSEAS CRUISESHIP, INC.
Dated as of July 30, 1997
=================================================================
EXECUTION COPY
July 2, 1997
Archinav Holdings, Inc.
95 Akti Miaouli
GR 185 38 Piraeus
Attn: M. G. Skordias
Overseas Cruiseship, Inc.
1114 Avenue of the Americas
New York, NY 10036
Attn: Robert N. Cowen, Esq.
Gentlemen:
As you are aware, A Wilhelmsen AS ("AWILCO") and Cruise
Associates ("CA") currently own 24,760,950 and 25,390,950 shares
of Royal Caribbean Cruises Ltd. (the "Company"), respectively, or
approximately 38.8% and 39.8% of the shares of Common Stock of
the Company now issued and outstanding. As you are aware, AWILCO
and CA have been furnished copies of the Stock Purchase
Agreement, dated as of July 2, 1997, among the Company, Celebrity
Cruise Lines, Inc. and you (the "Agreement"). Terms defined in
the Agreement shall have like meanings when used herein, unless
the context otherwise requires.
To induce you to enter the Agreement and to effectuate the
provisions of Section 5.11 thereof for the period, and subject to
conditions, therein provided, each of AWILCO and CA agrees to
vote the shares of Common Stock then owned by it to elect the
person or persons nominated by one or both of the Stockholders to
the Company's Board of Directors.
<PAGE>
Please acknowledge receipt of this letter by signing and
returning the enclosed copy hereof.
Very truly yours,
A. WILHELMSEN, AS.
By: s/______________________________
Name:
Title
CRUISE ASSOCIATES
By: CET Investment Group,
a general partner
By: CIRC Trust Company
(Bahamas) Limited, as
Trustee of Settlement
T-577, a general partner
By: s/_________________________
Name: Carlis E. Chisholm
Title: Manager, Trust
Department
Receipt acknowledged as of
the date above written.
Archinav Holdings, Inc.
By: s/________________________________
Name:
Title:
Overseas Cruiseship, Inc.
By: s/_________________________________
Name:
Title:
