Exhibit 10.1
Royal Caribbean Cruises Ltd.
2000 Stock Award Plan
As Amended And Restated Through December 6, 2005
Table of Contents
|
|
|
|
|
Section
|
|
Page
|
|
|
1. Purpose and Effectiveness
|
|
|
1
|
|
2. Definitions and Rules of Construction
|
|
|
2
|
|
3. Eligibility and Participation
|
|
|
4
|
|
4. Stock Subject to Plan
|
|
|
5
|
|
5. Forms and Terms of Awards Under the Plan
|
|
|
5
|
|
6. Exercises of Stock Options
|
|
|
10
|
|
7. Events Affecting Plan Reserve or Plan Awards
|
|
|
12
|
|
8. Administration of the Plan
|
|
|
15
|
|
9. Government Regulations and Registration of Shares
|
|
|
16
|
|
10. Miscellaneous Provisions
|
|
|
16
|
|
11. Amendment and Termination of this Plan
|
|
|
19
|
|
Signature
|
|
|
19
|
|
Section 1. Purpose and Effectiveness
The purpose of this amended and restated Royal Caribbean Cruises Ltd. 2000 Stock Award Plan
(the Plan) is to promote the success of Royal Caribbean Cruises Ltd. (the Company) by providing
a method whereby both employees and directors of the Company and its Affiliates may be encouraged
to increase their proprietary interest in the Companys business. By offering incentive
compensation opportunities that are based on the Companys common stock, the Plan will motivate
Participants to achieve long-range goals, further identify their interests with those of the
Companys other shareholders, and promote the long-term financial interest of the Company. The
Plan is further intended to aid in attracting persons of exceptional ability and leadership
qualities to become officers, employees, and directors of the Company and its Affiliates.
The Plan was amended and restated in its entirety effective February 3, 2004 (the Effective
Date) and shall be subject to approval at the 2004 annual meeting of the Companys shareholders.
Any Awards granted under the Plan prior to such stockholder approval, other than Nonqualified
Options authorized under the Plan prior to this amendment and restatement, shall be conditioned
upon such shareholder approval and shall be null and void if such approval is not obtained.
The Plan shall be unlimited in duration and, in the event of Plan termination, shall remain in
effect as long as any Awards under it are outstanding; provided, however, that no Awards may be
granted under the Plan after September 1, 2009.
- 1 -
Awards made under the Plan may be in the form of Incentive Options, Nonqualified Options,
Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, and Performance Shares, each
as defined in Section 5(a) of the Plan and as the Committee shall, in its sole discretion, decide.
Section 2. Definitions and Rules of Construction
(a)
Defined Terms
. Capitalized terms not defined elsewhere in the Plan shall have the
following meanings (whether used in the singular or plural):
Affiliate
means any business entity, regardless of whether organized as a corporation, limited
liability company, partnership or any other legal form, in which the Company has (i) an ownership
of 50% or greater, or (ii) in the sole discretion of the Committee, a controlling interest.
Agreement
means a written agreement between a Participant and the Company that sets out the terms
of the grant of an Award, as any such Agreement may be supplemented or amended from time to time.
Award
means any award or benefit granted under the Plan, as further defined in Section 5 of the
Plan.
Beneficiary
means the individual(s) designated by the Participant to succeed to his/her rights in
all Awards granted to him/her under the Plan in the eventuality of his/her death or mental
incapacity.
Board
means the Board of Directors of the Company.
Code
means the Internal Revenue Code of 1986, as amended from time to time, or any successor
statute or statutes thereto. Reference to any specific Code section shall include any successor
section.
Committee
means the Compensation Committee of the Board of Directors of the Company.
Company
means Royal Caribbean Cruises Ltd. and any successor entity.
Date of Grant
means the date on which the Committee takes the corporate actions necessary to fix
the major terms of an Award to a specified Eligible Individual, including, in the case of an
Option, the number of Shares subject to the Option and the applicable Exercise Price.
Director
means a duly elected or appointed member of the Companys Board of Directors.
- 2 -
Disability
means permanent and total disability as defined in Section 22(e) of the Code.
Eligible Individual
means an Employee or Director, who is described in Section 3.
Employee
means an individual who is employed by the Company or any Affiliate of the Company. The
term Employee will also include an individual who is granted an Award, in connection with his/her
hiring by the Company or any Affiliate, prior to the date the individual first becomes an Employee,
but if and only if such Award does not vest prior to the date the individual first becomes an
Employee.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from time to time, or
any successor statute or statutes thereto. Reference to any specific ERISA section shall include
any successor section.
Exchange Act
means the Securities Exchange Act of 1934, as amended from time to time, or any
successor statute or statutes thereto. Reference to any specific Exchange Act section shall
include any successor section.
Executive Officer
means executive officer as defined in Rule 3b-7 under the Exchange Act,
provided that, if the Board has designated the executive officers of the Company for purposes of
reporting under the Exchange Act, the designation by the Board shall be conclusive for purposes of
the Plan.
Exercise Price
means the price that must be paid by an Optionee upon exercise of an Option to
purchase a share of Stock.
Fair Market Value
of a Share of Stock as of any date means the mean between the highest and
lowest reported sale prices of the Stock (i) on the date on the principal exchange or market on
which the Stock is then listed or admitted to trading, or (ii) if the day is not a date on which
such exchange or market is open, the last preceding date on which there was a sale of such Stock on
such exchange or market.
Option
means a Nonqualified Option or an Incentive Option.
Optionee
means an Eligible Individual who has received an Option under this Plan, for the period
of time during which such Option is held in whole or in part.
Option Shares
means, with respect to any Option granted under this Plan, the Stock that may be
acquired upon the exercise of such Option.
Participant
means an Eligible Individual who has received an Award under this Plan.
Plan
means this Royal Caribbean Cruises Ltd. 2000 Stock Incentive Plan, as amended from time to
time.
Secretary
means the secretary of the Company or his/her designee.
- 3 -
Settlement Date
means the date on which Stock, cash, cash equivalents, or any combination thereof
are transferred by the Company to a Participant with respect to, and in settlement of, a prior
contractual commitment made by the Company to such Participant under the Plan in the form of
Restricted Stock Units or Performance Shares.
Shares or Stock
mean shares of the common stock of the Company, par value $.01, subject to any
adjustments made under Section 7 or by operation of law.
Subsidiary
of the Company means any present or future subsidiary (as that term is defined in
Section 424(f) of the Code) of the Company An entity shall be deemed a subsidiary of the Company
for purposes of this definition only for such periods as the requisite ownership or control
relationship is maintained.
Termination of Service, Terminate or Termination
occurs when a Participant ceases to be an
Employee of, or ceases to be a Director of, the Company and its Affiliates, as the case may be, for
any reason.
Vested, Vest and Vesting
means (i) with respect to any portion of an Award, that legal
ownership of such portion of the Award will not be forfeited by the Participant pursuant to the
provisions of this Plan in the event the Participant Terminates Service with the Company or any
Affiliate, and (ii) with respect to any portion of an Option, that such portion of the Option may
be exercised, unless such exercise is prohibited by law or by other provisions of the Plan.
Vesting Date
with respect to any Award granted hereunder means the date on which such Award
becomes Vested, as designated in or determined in accordance with the Plan and with the Agreement
with respect to such Award. If more than one Vesting Date is designated for an Award, reference in
the Plan to a Vesting Date in respect of such Award shall be deemed to refer to each part of such
Award and the Vesting Date for such part.
(b)
Rules of Construction
. Where the context permits, words in any gender shall
include the other gender, words in the singular shall include the plural, and the plural shall
include the singular.
Section 3. Eligibility and Participation
The persons who shall be eligible to participate in the Plan and to receive Awards shall be
such Employees (including officers) and Directors as the Committee, in its sole discretion, shall
select. Awards may be made to Eligible Individuals who hold or have held Awards under this Plan or
any similar plan or other awards under any other plan of the Company or any of its Affiliates. Any
member of the Committee shall be eligible to receive Awards while serving on the Committee.
Awards may be granted by the Committee at any time and from time to time to new Participants,
or to then Participants, or to a greater or lesser number of Participants,
- 4 -
and may include or exclude previous Participants, as the Committee shall determine. Except as
required by this Plan, Plan Awards granted at different times need not contain similar provisions.
The Committees determinations under the Plan (including without limitation, determinations of
which individuals, if any, are to receive Awards, the form, amount and timing of such Awards, the
terms and provisions of such Awards and the agreements evidencing same) need not be uniform and may
be made by it selectively among individuals who receive, or are eligible to receive, under the
Plan.
Section 4. Stock Subject to Plan
Subject to the following provisions of this Section 4 and to the provisions of Section 7, the
maximum number of Shares with respect to which any Awards may be granted, including Awards of
Incentive Stock Options as defined in Section 5(a)(i), during the term of the Plan shall be
13,000,000. During any calendar year, no one individual shall be granted, under this Plan, Awards
with respect to more than 500,000 shares.
During the term of this Plan, the Company will at all times reserve and keep available the
number of Shares that shall be sufficient to satisfy the requirements of this Plan. Shares will be
made available from the currently authorized but unissued shares of the Company or from shares
currently held or subsequently reacquired by the Company as treasury shares, including shares
purchased in the open market or in private transactions.
The grant of any Award hereunder shall count, equal in number to the Shares represented by
such Award, towards the share maximum indicated in this Section 4. To the extent that (i) any
outstanding Option for any reason expires, is terminated, forfeited or canceled without having been
exercised, or if any other Award is forfeited or otherwise does not result in the delivery of
Shares by the Company, and (ii) any Shares covered by an Award are not delivered because the Award
is settled in cash or used to satisfy the applicable tax withholding obligation, such Shares shall
be deemed to have not been delivered and shall be restored to the share maximum. If the exercise
price of any Option granted under the Plan is satisfied by tendering Shares to the Company (by
either actual delivery or attestation), the number of Shares tendered shall be restored to the
share maximum.
Section 5. Forms and Terms of Awards Under the Plan
(a)
In General
. The Committee may grant any of the following types of Awards, either
singly or in combination with other Awards:
(i)
Incentive Stock Options
. An incentive stock option (an Incentive Option) shall
convey to the Participant the right to purchase from the Company a stated number of Shares
at an Exercise Price and for a period of time established by the Committee. An Incentive
Option is both intended to be and qualifies as an incentive stock option under Section 422
of the Code.
- 5 -
(ii)
Nonqualified Stock Options
. A nonqualified stock option (a Nonqualified
Option) shall convey to the Participant the right to purchase from the Company a stated
number of Shares at an Exercise Price and for a period of time established by the
Committee. A Nonqualified Option is not intended to be or does not qualify as an Incentive
Option under Section 422 of the Code.
(iii)
Stock Appreciation Rights
. A Stock Appreciation Right is an Award in the form
of a right to receive, upon surrender of the right, but without other payment, an amount
based on appreciation in the value of Stock over a base price established in the Award,
payable in Stock, at times and upon conditions (which may include a Change in Control), as
may be approved by the Committee.
(iv)
Restricted Stock
. Restricted Stock is an Award of Shares that are issued to a
Participant such that the Participant is thereupon the legal owner of such Shares with all
of the attendant rights and privileges of ownership, but remains subject to a risk of
forfeiture of such ownership back to the Company for a period of time specified on the Date
of Grant. Such forfeiture may be conditioned on the continued performance of services or
the achievement of individual, divisional, or corporate goals. Restricted Stock will also
be subject to restrictions on transfer and such other restrictions on incidents of
ownership as the Committee may determine, for the same period of time as the risk of
forfeiture.
(v)
Restricted Stock Units
. A Restricted Stock Unit is an Award payable in cash or
Stock and represented by a bookkeeping credit, in which both the number of Shares and the
Settlement Date (subject to any subsequent deferral election by the Participant) are fixed
on the Date of Grant. The value of each Restricted Stock Unit equals the Fair Market Value
of a share of Stock, as such value may change up to the date the Stock Unit Vests. The
actual payment of cash or Stock to the Participant at the Settlement Date may be made
contingent, in the sole discretion of the Committee, upon (A) solely continued service, or
(B) both continued service and the achievement of an individual, divisional or corporate
goal. Restricted Stock Units are not outstanding shares of Stock and do not entitle a
Participant to voting or other rights or dividends with respect to Stock, unless and until
actually paid out in the form of Stock.
(vi) P
erformance Shares
. A Performance Share is a variable Award payable in cash or
Stock and represented by a bookkeeping credit, in which the number of Shares (or value
thereof) to be transferred to the Participant at the end of a performance measurement
period will be a function of both continued service and the relevant achievement of
individual, divisional or corporate goals. The value of each Performance Share equals the
Fair Market Value of a share of Stock, as such value may change up to the date the
Performance Share Vests. Shares actually transferred following the end of the performance
measurement
- 6 -
period will not be restricted by the Company in any way, other than as required by law.
(b)
Provisions Applicable to All Forms of Awards
. Subsequent to the grant of any
Award, the Committee may, at any time before the complete expiration of such Award, Vest the Award
in whole or part or accelerate the time or times at which such Award may become Vested in whole or
in part in the future(without reducing the term of such Award).
To the extent that the Company is required to withhold any Federal, state or other taxes in
respect of any compensation income realized by the Participant in respect of shares acquired
pursuant to an Award, or in respect of the Vesting of any such shares of Stock, then the Company
shall deduct from either such Shares or any payments of any kind otherwise due to such Participant
the aggregate amount of such Federal, state or other taxes required to be so withheld. If such
payments are insufficient to satisfy such Federal, state or other taxes, then such Participant will
be required to pay to the Company, or make other arrangements satisfactory to the Company regarding
payment to the Company of, the aggregate amount of any such taxes. All matters with respect to the
total amount of taxes to be withheld in respect of any such compensation income shall be determined
by the Company in its sole discretion.
(c)
Provisions Applicable to Stock Options and Stock Appreciation Rights
. Subject to
the limitations of the Plan, the Committee shall designate from time to time those Eligible
Individuals to be granted Options, the time when each Option shall be granted, the number of Shares
subject to such Option, whether such Option is an Incentive Option or a Nonqualified Option, and
the Exercise Price of the Option Shares. Options shall be evidenced by Agreements in such form and
containing such terms and provisions not inconsistent with the provisions of the Plan as the
Committee may from time to time approve. Each Optionee shall be notified of such grant and a
written Agreement shall be executed and delivered by the Company to the Optionee. Subject to the
other provisions of the Plan, the same person may receive Incentive Options and Nonqualified
Options at the same time and pursuant to the same Agreement, provided that Incentive Options and
Nonqualified Options are clearly designated as such.
Option Agreements shall conform to the terms and conditions of the Plan. Such Agreements may
provide that the grant of any Option under the Plan, or that Stock acquired pursuant to the
exercise of any Option, shall be subject to such other conditions (whether or not applicable to an
Option or Stock received by any other Optionee) as the Committee determines appropriate, including,
without limitation, provisions conditioning exercise upon the occurrence of certain events or
performance or the passage of time, provisions to assist the Optionee in financing the purchase of
Stock through the exercise of Options, provisions for forfeiture, restrictions on resale or other
disposition of shares acquired pursuant to the exercise of Options, provisions conditioning the
grant of the Option or future Options upon the Optionee retaining ownership of Shares acquired upon
exercise for a stated period of time, and provisions to comply with federal and state securities
laws and federal and state income tax and other payroll tax withholding requirements.
- 7 -
The price at which Shares may be purchased upon exercise of an Option shall be fixed by the
Committee on the Date of Grant and may not be less than 100% of the Fair Market Value of the Option
Shares as of the Date of Grant. All Options shall specify the term during which the Option may be
exercised, which shall be in all cases ten years or less.
No Option may be exercised in part or in full before the Vesting Date(s) set forth in its
terms, other than in the event of acceleration as provided in Section 7. No Option may be
exercised prior to the day following the six-month anniversary of the Date of Grant, or after the
Option expires by its terms as set forth in the applicable Agreement. In the case of an Option
that is exercisable in installments, installments that are exercisable and not exercised shall
remain exercisable during the term of the Option. The grant of an Option shall impose no
obligation on the Optionee to exercise such Option.
The Committee may specify in any Agreement a vesting schedule that must be satisfied before
Options become Vested, such that all or any portion of an Option may not become Vested until a
Vesting Date or Vesting Dates, or until the occurrence of one or more specified events, subject in
any case to the terms of the Plan.
No Option shall be transferable other than by will or the laws of descent and distribution,
other than pursuant to an order issued by a court of competent jurisdiction in connection with the
divorce or bankruptcy of the Participant. During the lifetime of the Optionee, the Option shall be
exercisable only by such Optionee or his/her court-appointed legal representative or transferee.
Notwithstanding anything herein to the contrary, the Committee may, in its sole discretion, provide
in the applicable Agreement evidencing a Nonqualified Option that the Optionee may transfer, assign
or otherwise dispose of an option (i) to his/her spouse, parents, siblings and lineal descendants,
(ii) to a trust for the benefit of the Optionee and any of the foregoing, or (iii) to any
corporation or partnership controlled by the Optionee, subject to such conditions or limitations as
the Committee may establish to ensure compliance with any rule promulgated pursuant to the Exchange
Act, or for other purposes. The terms applicable to the assigned Option shall be the same as those
in effect for the Option immediately prior to such assignment and shall be set forth in such
documents issued to the assignee as the Company may deem appropriate.
An Optionee or a transferee of an Option shall have no rights as a stockholder with respect to
any Share covered by his/her Option until he shall have become the holder of record of such Share,
and he shall not be entitled to any dividends or distributions or other rights in respect of such
Share for which the record date is prior to the date on which he shall have become the holder of
record thereof.
The Committee shall not, without first having obtained the approval of the shareholders of the
Company, effect the cancellation of any or all outstanding Options under the Plan and the
substitution therefore of new Options covering the same or
- 8 -
different number of Shares but with an exercise price per share based on the Fair Market Value
per Share on the new option grant date.
The following additional provisions shall be applicable to Incentive Options, but only if, and
to the extent, required by section 422 of the Code:
(i) Incentive Options shall be specifically designated as such in the applicable Agreement,
and may be granted only to those Eligible Individuals who are both (A) Employees of the
Company and/or a Subsidiary, and (B) citizens or resident aliens of the United States.
(ii) To the extent the aggregate Fair Market Value (determined as of the time the Option is
granted) of the Stock with respect to which any Incentive Options granted hereunder may be
exercisable for the first time by the Optionee in any calendar year (under this Plan or any
other compensation plan of the Company or any Subsidiary thereof) exceeds $100,000, such
Options shall not be considered Incentive Options.
(iii) No Incentive Option may be granted to an individual who, at the time the Option is
granted, owns directly, or indirectly within the meaning of Section 424(d) of the Code,
stock possessing more than 10% of the total combined voting power of all classes of stock
of the Company or of any Subsidiary thereof, unless such Option (i) has an exercise price
of at least 110% of the Fair Market Value of the Stock on the Date of Grant of such option;
and (ii) cannot be exercised more than five years after the Date of Grant.
(iv) The Exercise Price for Incentive Options shall not be less than the Fair Market Value
of the Stock on the Date of Grant.
Each of the above provisions with respect to the granting, vesting, transferability and
exercise of Options, except to the extent they are applicable solely to (i) the actual purchase of
stock and payment of consideration or (ii) Incentive Options, shall also apply to the grant of
Stock Appreciation Rights by the Committee under the Plan.
(d)
Provisions Applicable to Restricted Stock and Restricted Stock Units
. Awards of
Restricted Stock and Restricted Stock Units shall be subject to the right of the Company to require
forfeiture of such Shares or rights by the Participant in the event that conditions specified by
the Committee in the applicable Agreement are not satisfied prior to the end of the applicable
vesting period established by the Committee for such Awards. Conditions for repurchase (or
forfeiture) may be based on continuing employment or service or achievement of pre-established
performance or other goals and objectives. Subsequent to the grant of an award of Restricted Stock
or Restricted Stock Units, the Committee may, at any time before complete termination of such
Restricted Stock or Restricted Stock Unit, accelerate the time or times at which such Restricted
Stock or Restricted Stock Unit is no longer subject to forfeiture or repurchase.
- 9 -
A Restricted Stock Unit may provide the Participant with the right to receive dividend
payments or dividend equivalent payments with respect to Stock subject to the Award (both before
and after the Stock subject to the Award is earned, Vested, or acquired), which payments may be
either made currently or credited to an account for the Participant, and may be settled in cash or
Stock, as determined by the Committee. Any such settlements, and any such crediting of dividends
or dividend equivalents or reinvestment in shares of Stock, may be subject to such conditions,
restrictions and contingencies as the Committee shall establish, including the reinvestment of such
credited amounts in Stock equivalents.
Shares represented by Restricted Stock Awards may not be sold, assigned, transferred, pledged
or otherwise encumbered, except as permitted by the Committee, during the applicable vesting
period. Such Shares shall be evidenced in such manner as the Committee may determine. Any
certificates issued in respect of such Shares shall be registered in the name of the Participant
and, unless otherwise determined by the Committee, deposited by the Participant, together with a
stock power endorsed in blank, with the Company (or its designee). To the extent Shares of a
Restricted Stock Award Vest, the Company (or such designee) shall deliver such certificates to the
Participant or, if the Participant has died, to the Participants Beneficiary. Each certificate
evidencing stock subject to Restricted Stock Awards shall bear an appropriate legend referring to
the terms, conditions and restrictions applicable to such Award. Any attempt to dispose of stock
in contravention of such terms, conditions and restrictions shall be ineffective. During the
restriction period, the Participant shall have all the rights of a shareholder for all such Shares,
including the right to vote and the right to receive dividends thereon as paid.
(e)
Provisions Applicable to Restricted Stock Units and Performance Shares
. The
Committee may provide in the terms of a Restricted Stock Unit or Performance Share Award for the
elective deferral by the Participant of the receipt of the actual payment of cash or Stock
otherwise due and payable to the Participant pursuant to such Award. In providing for such
deferral, the Committee shall limit eligibility, and shall specify such rules regarding the timing
and other features of the deferral, so as to comply with all applicable sections of ERISA and the
constructive receipt and similar doctrines of the internal revenue laws.
Section 6. Exercises of Stock Options
An Option may be exercised in whole or in part at any time to the extent such Option has
become Vested during the term of such Option; provided, however, that (i) unless otherwise provided
by Section 7, an Option may be exercised only while the Optionee is an Employee or Director, and
(ii) each partial exercise shall be for whole Shares only. Unless otherwise provided by Section 7,
that portion of an Option that has not become Vested as of the date the Optionee ceases to be an
Employee or Director shall lapse and be null and void.
Each Option, or any exercisable portion thereof, may only be exercised by delivery to the
Secretary or his/her office, in accordance with such procedures for the
- 10 -
exercise of Options as the Company may establish from time to time, of (i) notice in writing
signed by the Optionee (or other person then entitled to exercise such Option) that such Option, or
a specified portion thereof, is being exercised; (ii) payment in full for the purchased Shares
(pursuant to the rules specified below); (iii) such representations and documents as are necessary
or advisable to effect compliance with all applicable provisions of Federal or state securities
laws or regulations; (iv) in the event that the Option or portion thereof shall be exercised by any
individual other than the Optionee, appropriate proof of the right of such individual to exercise
the Option or portion thereof; and (v) full payment to the Company of all amounts which, under
federal, state or other law, it is required to withhold upon exercise of the Option (pursuant to
the rules specified below).
Except as noted in this paragraph, upon receiving notice of exercise and payment, the Company
will cause to be delivered to the Optionee, as soon as practicable, a certificate in the Optionees
name for the Shares purchased, and within a reasonable time thereafter such transfer shall be
evidenced on the books and records of the Company. The Shares issuable and deliverable upon the
exercise of an Option shall be fully paid and nonassessable. Shares shall not be issued pursuant
to the exercise of an Option unless the exercise of such Option and the issuance and delivery of
such Shares pursuant thereto shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which the Shares may then
be listed, and shall be further subject to the approval of counsel for the Company with respect to
such compliance.
Payment for Shares purchased under an Option granted hereunder shall be made in full upon
exercise of the Option (except that, in the case of an exercise arrangement approved by the Company
and described in clause (iv) below, payment may be made as soon as practicable after the exercise).
The method or methods of payment of the purchase price for the Shares to be purchased upon
exercise of an Option and of any amounts required for tax withholding purposes shall be determined
by the Company and may consist of (i) cash, (ii) check, (iii) the tendering, by either actual
delivery or by attestation, of whole shares of Stock, valued at Fair Market Value as of the day of
exercise, or (iv) through a special sale and remittance procedure pursuant to which the Optionee
shall concurrently provide irrevocable written instructions to (a) a brokerage firm acceptable to
the Company to effect the immediate sale of the purchased shares and remit to the Company, out of
the sale proceeds available on the settlement date, sufficient funds to cover the aggregate
exercise price payable for the purchased shares plus all applicable Federal, state and other
employment taxes required to be withheld by the Company by reason of such exercise, and (b) the
Company to deliver the certificates for the purchased Shares directly to such brokerage firm in
order to complete the sale. The permitted method or methods of payment of the amounts payable upon
exercise of an Option may be transacted by the Optionee him/herself or by a broker designated by
him/her (other than a payment described in clause (iv) above), and, if other than in cash, shall be
set forth in the applicable agreement.
- 11 -
Each Agreement shall require that an Optionee pay to the Company, at the time of exercise of a
Nonqualified Option, such amount as the Company deems necessary to satisfy the Companys obligation
to withhold federal or state income or other applicable taxes incurred by reason of the exercise or
the transfer of Shares thereupon. To the extent permitted by the Option Agreement, an Optionee may
satisfy such withholding requirements by having the Company withhold from the number of Shares
otherwise issuable upon exercise of the Option that number of shares having an aggregate Fair
Market Value on the date of exercise equal to the amount required by law to be withheld.
Section 7. Events Affecting Plan Reserve or Plan Awards
If the Company subdivides its outstanding shares of Stock into a greater number of shares of
Stock (including, without limitation, by stock dividend or stock split) or combines its outstanding
shares of Stock into a smaller number of shares (by reverse stock split, reclassification or
otherwise), or the Committee determines that any stock dividend, extraordinary cash dividend,
reclassification, recapitalization, reorganization, split-up, spin-off, combination, exchange of
shares, warrants or rights offering to purchase Stock, or other similar corporate event (including
mergers or consolidations) affects the Stock such that an adjustment is required in order to
preserve the benefits or potential benefits intended to be made available under this Plan, then the
Committee shall, in such manner as it may deem equitable and appropriate, make such adjustments to
any or all of (i) the number of shares of Stock reserved for the Plan, (ii) the number of shares
subject to outstanding Options and other Awards, (iii) the Exercise Price with respect to
outstanding Options, and any other adjustment that the Committee determines to be equitable;
provided, however, that the number of shares subject to any Option shall always be a whole number.
The Committee may provide for a cash payment to any Participant of a Plan Award in connection with
any adjustment made pursuant to this Section 7.
Any such adjustment to an Option shall be made without a change to the total Exercise Price
applicable to the unexercised portion of the Option (except for any change in the aggregate price
resulting from rounding-off of share quantities or prices), and shall be final and binding upon all
Participants, the Company, their representatives, and all other interested persons.
In the event of a transaction involving (i) a merger or consolidation in which the Company is
not the surviving company or (ii) the sale or disposition of all or substantially all of the
Companys assets, provision shall be made in connection with such transaction for the assumption of
Awards theretofore granted under the Plan, or the substitution for such Awards of new options of
the successor corporation, with appropriate adjustment as to the number and kind of Shares and the
purchase price for Shares thereunder. Alternatively, in the discretion of the Committee, the Plan
and the Awards issued hereunder shall terminate on the effective date of such transaction if
appropriate provision is made for payment to the Participant of an amount in cash equal to the Fair
Market Value of a Share multiplied by the number of Shares subject to the Awards (to the extent
such Awards have not been exercised) less the exercise price for such Awards (to the extent such
Awards have not been exercised). Further, any
- 12 -
obligations under the plan to deliver Shares of Stock in the future shall be similarly
adjusted.
If a Participant has a Termination of Service by reason of his/her death or Disability, then
notwithstanding any contrary waiting period, installment period or vesting schedule in any
Agreement or in the Plan, unless the applicable Agreement provides otherwise, each outstanding
Award granted to such Participant shall immediately become Vested and, if an Option, exercisable in
full in respect of the aggregate number of shares covered thereby.
If an Optionee has a Termination of Service by reason of his/her death or Disability prior to
the expiration date of his/her Option, or if an Optionee dies subsequent to his/her Termination of
Service on account of such Disability but prior to the expiration date of his/her Option, and in
either case all or some portion of such Option is Vested and exercisable pursuant to the terms of
this Plan and of the Option Agreement, such Option may be exercised by the Optionee or by the
Optionees estate, personal representative or beneficiary, as the case may be, at any time prior to
the earlier of (i) one year following the date of the Optionees death or disability, or such later
time not to exceed an additional year as the Committee may from time to time determine in its
discretion on a case by case basis, or (ii) the expiration date of such Option.
If an Optionee has a Termination of Service for any reason other than his/her death or
Disability prior to the expiration date of his/her Option, and all or some portion of such Option
is Vested and exercisable pursuant to the terms of this Plan and of the Option Agreement, such
Option may be exercised by the Optionee at any time prior to the earlier of (i) three months
following the date of the Optionees Termination, or such later time not to exceed an additional
nine months as the Committee may from time to time determine in its discretion on a case by case
basis, or (ii) the expiration date of such Option.
The Company may determine whether any given leave of absence constitutes a termination of
employment and, if it does not, whether the time spent on the leave will or will not be counted as
vesting credit; provided, however, that for purposes of the Plan (i) a leave of absence, duly
authorized in writing by the Company, if the period of such leave does not exceed 90 days, and (ii)
a leave of absence in excess of 90 days, duly authorized in writing by the Company, provided (a)
the Employees right to reemployment is guaranteed either by statute or contract, or (b) for the
purpose of military service, shall not be deemed a termination of employment.
Following a Change of Control, if a Participant has a Termination of Service within eighteen
(18) months of such Change of Control, other than by reason of (a) death, (b) Disability, (c)
termination for Cause, or (d) termination by the Participant for other than Good Reason, then
notwithstanding any contrary waiting period, installment period or vesting schedule in any
Agreement or in the Plan, each outstanding Award granted to such Participant shall immediately
become Vested, and, if an Option, exercisable in full in respect of the aggregate number of shares
covered thereby.
- 13 -
Change of Control shall mean (i) the acquisition by any individual, entity or group (other
than the Company, Cruise Associates and/or A. Wilhelmsen AS or an affiliate of any of them) of
beneficial ownership (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) of
more than 50% of the then outstanding voting securities of the Company entitled to vote generally
in the election of Directors (the Voting Securities); (ii) during any period of 24 consecutive
months, a majority of the Board shall no longer be composed of individuals (a) who were members of
the Board on the first day of such period, or (b) whose election or nomination to the Board were
approved by a vote of at least two-thirds of the members of the Board who were members of the Board
on the first day of such period, or (c) whose election or nomination to the Board was approved by a
vote of at least two-thirds of the members of the Board referred to in the foregoing subclauses (a)
and (b); (iii) consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company (a Business Combination)
unless, following such Business Combination (a) the beneficial owners of the Voting Securities of
the Company immediately prior to the Business Combination beneficially own more than 50% of the
combined voting power of the voting securities entitled to vote generally in the election of
directors of the corporation resulting from such Business Combination, and (b) at least a majority
of the board of directors of the corporation resulting from such Business Combination were members
of the Companys Board at the time of the action of the Companys Board providing for such Business
Combination; (iv) consummation of a reorganization, merger or consolidation with another
corporation or business entity not already under common control with the Company, or the
acquisition of stock or assets of such other corporation or business entity, if the market
capitalization of the other corporation or entity, or the stock or assets acquired, is equal to or
greater than the Companys market capitalization immediately prior to the closing of such
transaction; or (v) approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company.
Cause shall mean (i) an act of material dishonesty, including, without limitation, fraud,
misappropriation, embezzlement, financial misrepresentation or other similar behavior, (ii)
conviction of, or the entry of a plea of guilty or nolo contendere to, the commission of a felony;
(iii) an action or failure to act that demonstrates a conflict of interest in which the person acts
for his or her own benefit to the detriment of the Company; (iv) an action or failure to act that
constitutes a material breach of the persons duties to the Company; or (v) the failure to follow
the lawful directives of the Company provided that those directives are consistent with the
persons duties to the Company.
Good Reason shall mean (i) the assignment to the person without the persons consent of any
duties materially inconsistent with the persons position (including status, offices and titles),
authority, duties or responsibilities as they existed prior to the Change of Control; (ii) any
action by the Company which results in a material diminuition in the persons position, authority,
duties, responsibilities, compensation or benefits as they existed prior to the Change of Control
without the persons consent; or (iii) the Company requiring that the person relocate his or her
principal business office more than 100 miles from the location existing prior to the Change of
Control without the persons consent.
- 14 -
In addition to any action required or authorized by the terms of an Award, the Committee may
take any other action it deems appropriate to ensure the equitable treatment of Participants in the
event of or anticipation of a Change of Control, including but not limited to any one or more of
the following with respect to any or all Awards: (i) the acceleration or extension of time periods
for purposes of exercising, vesting in, or realizing gains from, the Awards, (ii) the waiver of
conditions on the Awards that were imposed for the benefit of the Company, (iii) provision for the
cash settlement of the Awards for their equivalent cash value, as determined by the Committee, as
of the date of the Change of Control; or (iv) such other modifications or adjustments to the Awards
as the Committee deems appropriate to maintain and protect the rights and interests of Participants
upon or following the Change of Control.
Section 8. Administration
The Plan shall be administered by the Compensation Committee of the Board unless a different
committee is appointed by the Board.
The Committees administration of the Plan shall be subject to the following:
|
(a)
|
|
Subject to the provisions of the Plan, the Committee will have the authority and
discretion to select from among the Eligible Individuals those persons who shall receive
Awards, to determine the time or times of receipt, to determine the types of Awards and
the number of shares covered by the Awards, to establish the terms, conditions,
performance criteria, restrictions, and other provisions of such Awards, and, subject to
the restrictions of Section 11, to cancel or suspend Awards.
|
|
|
(b)
|
|
To the extent that the Committee determines that the restrictions imposed by the
Plan preclude the achievement of the material purposes of the Awards in jurisdictions
outside the United States, the Committee will have the authority and discretion to modify
those restrictions as the Committee determines to be necessary or appropriate to conform
to applicable requirements or practices of those jurisdictions.
|
With respect to the grant of Awards to Eligible Individuals who are not Executive Officers or
Directors, and except to the extent prohibited by applicable law or the applicable rules of a stock
exchange, the Committee may delegate to any person or persons selected by it, who may or may not be
Directors, (a Subcommittee) all or any part of its responsibilities and powers as set forth
above. Any such allocation or delegation may be revoked by the Committee at any time.
The Company and its Affiliates shall furnish the Committee with such data and information as
it determines may be required for it to discharge its duties. The records of the Company and its
Affiliates as to an Employees or Participants employment (or other provision of services),
Termination of Service, leave of absence, reemployment and compensation shall be conclusive on all
persons unless determined to be incorrect. Participants and other persons entitled to benefits
under the Plan must furnish to the
- 15 -
Company such evidence, data, or information, as the Committee or the Company considers
desirable to carry out the terms of the Plan.
The Committee is authorized, subject to the provisions of the Plan, to establish, amend and
rescind such rules and regulations, as it deems necessary or advisable for the proper
administration of the Plan and to take such other action in connection with or in relation to the
Plan, as it deems necessary or advisable. Each action and determination made or taken pursuant to
the Plan by the Committee, including any interpretation or construction of the Plan, shall be final
and conclusive for all purposes and upon all persons.
No member of the Committee shall be personally liable for any action, determination or
interpretation made by him/her or the Committee in good faith with respect to the Plan or any Award
granted pursuant thereto.
The Committee, the Company, and its officers and directors, shall be entitled to rely upon the
advice, opinions or valuations of any attorneys, consultants, accountants or other persons employed
to assist them in connection with the administration of the Plan.
Section 9. Government Regulations and Registration of Shares
The Plan, and the grant and exercise of Awards hereunder, and the Companys obligation to sell
and deliver stock under Options, shall be subject to all applicable federal and state laws, rules
and regulations and to such approvals by any regulatory or governmental agency as may be required.
The obligation of the Company with respect to Awards shall be subject to all applicable laws,
rules and regulations and such approvals by any governmental agencies as may be required,
including, without limitation, the effectiveness of any registration statement required under the
Securities Act of 1933, and the rules and regulations of any securities exchange or association on
which the Stock may be listed or quoted. For so long as the Stock of the Company is registered
under the Exchange Act, the Company shall use its reasonable efforts to comply with any legal
requirements (i) to maintain a registration statement in effect under the Securities Act of 1933
with respect to all shares of the applicable series of Stock that may be issued to Participants
under the Plan, and (ii) to file in a timely manner all reports required to be filed by it under
the Exchange Act.
Section 10. Miscellaneous Provisions
Legends
. Each certificate evidencing Stock obtained through the Plan shall bear such
legends as the Company deems necessary or appropriate to reflect or refer to any terms, conditions
or restrictions applicable to such Shares, including, without limitation, any to the effect that
the Shares represented thereby (i) are subject to contractual restrictions regarding disposition,
and (ii) may not be disposed of unless the Company
- 16 -
has received an opinion of counsel, acceptable to the Company, that such dispositions will not
violate any federal or state securities laws.
Rights of Company
. Nothing contained in the Plan or in any Agreement, and no action
of the Company or the Committee with respect thereto, shall interfere in any way with the right of
the Company or an Affiliate to terminate the employment of the Participant at any time, with or
without cause. The grant of Awards pursuant to the Plan shall not affect in any way the right or
power of the Company to make reclassifications, reorganizations or other changes of or to its
capital or business structure or to merge, consolidate, liquidate, sell or otherwise dispose of all
or any part of its business or assets.
Designation of Beneficiaries
. Each Participant who shall be granted a Plan Award may
designate a beneficiary or beneficiaries and may change such designation from time to time by
filing a written designation of beneficiary or beneficiaries with the Company on a form to be
prescribed by it, provided that no such designation shall be effective unless so filed prior to the
death of such person.
Compliance with Other Laws and Regulations
. Notwithstanding anything contained herein
to the contrary, the Company shall not be required to sell or issue shares of Stock if the issuance
thereof would constitute a violation by the Company of any provisions of any law or regulation of
any governmental authority or any national securities exchange or other forum in which shares of
Stock are traded (including without limitation Section 16 of the Exchange Act); and, as a condition
of any sale or issuance of shares of Stock, the Company may require such agreements or
undertakings, if any, as the Company may deem necessary or advisable to assure compliance with any
such law or regulation. The Plan, the grant of Awards and exercise of Options hereunder, and the
obligation of the Company to sell and deliver shares of Stock, shall be subject to all applicable
federal and state laws, rules and regulations and to such approvals by any government or regulatory
agency as may be required. To the extent the Plan provides for issuance of stock certificates to
reflect the issuance of shares of Stock, the issuance may be effected on a non-certificated basis,
to the extent not prohibited by applicable law or the applicable rules of any stock exchange.
Payroll Tax Withholding
. The Companys obligation to deliver shares of Stock under
the Plan shall be subject to applicable federal, state and other tax withholding requirements.
Federal, state, and other tax due upon the exercise of any Award may, in the discretion of the
Company, be paid in shares of Stock already owned by the Optionee or through the withholding of
shares otherwise issuable to such Optionee, upon such terms and conditions (including, without
limitation, the conditions referenced in Section 6) as the Company shall determine which shares
shall have an aggregate Fair Market Value equal to the required minimum withholding payment. If
the Optionee shall fail to pay, or make arrangements satisfactory to the Committee for the payment
to the Company of all such federal, state and other taxes required to be withheld by the Company,
then the Company shall, to the extent permitted by law, have the right to deduct from any payment
of any kind otherwise due to such Optionee an
- 17 -
amount equal to federal, state or other taxes of any kind required to be withheld by the
Company.
Non-Exclusivity of the Plan
. Neither the adoption of the Plan by the Board nor the
submission of the Plan to the stockholders of the Company for approval shall be construed as
creating any limitations on the power of the Board to adopt such other incentive arrangements as it
may deem desirable, including, without limitation, the granting of stock options and the awarding
of stock and cash otherwise than under the Plan, and such arrangements may be either generally
applicable or applicable only in specific cases.
Exclusion from Benefit Computation
. By accepting an Award, unless otherwise provided
in the applicable Agreement, each Participant shall be deemed to have agreed that such Award is
special incentive compensation that will not be taken into account, in any manner, as salary,
compensation or bonus in determining the amount of any payment under any health and welfare,
pension, retirement or other employee benefit plan, program or policy of the Company or any
Subsidiary. In addition, each beneficiary of a deceased Participant shall be deemed to have agreed
that such Award will not affect the amount of any life insurance coverage, if any, provided by the
Company on the life of the Participant which is payable to such beneficiary under any life
insurance plan covering employees of the Company or any Subsidiary.
Governing Law
. The Plan shall be governed by, and construed in accordance with, the
laws of the State of Florida.
Use of Proceeds
. Proceeds from the sale of Shares pursuant to Options granted under
this Plan shall constitute general funds of the Company.
No Rights to Continued Employment
. The Plan does not constitute a contract of
employment, and selection as a Participant will not give any participating Employee or other
Eligible Individual the right to be retained in the employ of the Company or any Subsidiary, or the
right to continue to provide services to the Company or any Subsidiary, nor any right or claim to
any benefit under the Plan, unless such right or claim has specifically accrued under the terms of
the Plan.
Form and Time of Elections
. Unless otherwise specified herein, each election required
or permitted to be made by any Participant or other person entitled to benefits under the Plan, and
any permitted modification, or revocation thereof, shall be in writing filed with the Company at
such times, in such form, and subject to such restrictions and limitations, not inconsistent with
the terms of the Plan, as the Company shall require.
Unfunded Status
. Neither a Participant nor any other person shall, by reason or
participation in the Plan, acquire any right in or title to any assets, funds or property of the
Company or any Affiliate whatsoever, including, without limitation, any specific funds, assets, or
other property which the Company or any Affiliate, in its sole discretion may set aside in
anticipation of a liability under the Plan. A Participant shall
- 18 -
have only a contractual right to the Stock or amounts, if any, payable under the Plan,
unsecured by any assets of the Company or any Subsidiary, and nothing contained in the Plan shall
constitute a guarantee that the assets of the Company or any Affiliate shall be sufficient to pay
any benefits to any person.
Section 11. Amendment and Termination of this Plan
The Committee may at any time terminate, suspend or discontinue this Plan. The Committee may
amend this Plan at any time, provided that any material amendment to the Plan will not be effective
unless approved by the Companys stockholders. The Committee may at any time alter or amend any or
all Award Agreements under this Plan in any manner that would be authorized for a new Award under
this Plan, so long as such an amendment would not require approval of the Companys stockholders if
such amendment was made to the Plan. Notwithstanding the foregoing, no such action by the Board or
the Committee shall, in any manner adverse to a Participant, affect any Award then outstanding and
evidenced by an Award Agreement without the consent in writing of the Participant or a Beneficiary
who has become entitled to an Award.
SIGNATURE
IN WITNESS WHEREOF, Royal Caribbean Cruises Ltd. has caused this 2000 Stock Award Plan, as
amended and restated through December 6, 2005, to be executed as of the
6th
day of
December
2005.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ROYAL CARIBBEAN CRUISES LTD.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attest:
|
|
/s/BRADLEY H. STEIN
|
|
|
|
By:
|
|
/s/THOMAS F. MURRILL
|
|
|
|
|
Bradley H. Stein
|
|
|
|
Thomas F. Murrill
|
|
|
|
|
Assistant Secretary
|
|
|
|
Vice President and
|
|
|
|
|
|
|
|
|
Chief Human Resources Officer
|
|
|
- 19 -
EXHIBIT 10.2
THE ROYAL CARIBBEAN CRUISES LTD. ET AL
NONQUALIFIED 401(k) PLAN
AMENDED AND RESTATED THROUGH DECEMBER 6, 2005
THE ROYAL CARIBBEAN CRUISES LTD ET AL
NONQUALIFIED 401(K) PLAN
TABLE OF CONTENTS
|
|
|
|
|
Article
|
|
Page
|
|
1. PURPOSE
|
|
|
1
|
|
|
|
|
|
|
2. DEFINITIONS
|
|
|
2
|
|
|
|
|
|
|
2.1 Affiliated Company
|
|
|
2
|
|
2.2 Beneficiary
|
|
|
2
|
|
2.3 Board
|
|
|
2
|
|
2.4 Bonus
|
|
|
2
|
|
2.5 Bonus Deferral
|
|
|
2
|
|
2.6 Code
|
|
|
2
|
|
2.7 Company
|
|
|
2
|
|
2.8 Effective Date
|
|
|
2
|
|
2.9 Eligible Earnings
|
|
|
2
|
|
2.10 Eligible Employee
|
|
|
2
|
|
2.11 Employee
|
|
|
2
|
|
2.12 Employee Deferral Contributions
|
|
|
2
|
|
2.13 Employer
|
|
|
3
|
|
2.14 ERISA
|
|
|
3
|
|
2.15 Participant
|
|
|
3
|
|
2.16 Participant Account
|
|
|
3
|
|
2.17 Plan
|
|
|
3
|
|
2.18 Plan Year
|
|
|
3
|
|
2.19 Termination of Employment
|
|
|
3
|
|
2.20 Valuation Date
|
|
|
3
|
|
|
|
|
|
|
3. ELIGIBILITY TO PARTICIPATE
|
|
|
4
|
|
|
|
|
|
|
3.1 Determination of Eligible Employee Status
|
|
|
4
|
|
3.2 Commencement of Participation
|
|
|
4
|
|
3.3 Cessation of Participation
|
|
|
5
|
|
|
|
|
|
|
4. EMPLOYEE DEFERRALS
|
|
|
6
|
|
|
|
|
|
|
4.1 Employee Deferral Contributions
|
|
|
6
|
|
4.2 Changes in Contributions
|
|
|
6
|
|
4.3 Suspension of Contributions
|
|
|
6
|
|
4.4 Bonus Deferrals
|
|
|
6
|
|
4.5 Vesting of Employee Deferral Contributions and Bonus Deferrals
|
|
|
6
|
|
|
|
|
|
|
5. INVESTMENTS AND PARTICIPANT ACCOUNTS
|
|
|
7
|
|
|
|
|
|
|
5.1 Establishment of Accounts
|
|
|
7
|
|
5.2 Obligation of the Company
|
|
|
7
|
|
5.3 Establishment of Investment Funds
|
|
|
7
|
|
THE ROYAL CARIBBEAN CRUISES LTD ET AL
NONQUALIFIED 401(K) PLAN
TABLE OF CONTENTS
|
|
|
|
|
Article
|
|
Page
|
|
5.4 Crediting Investment Results
|
|
|
7
|
|
|
|
|
|
|
6. DISTRIBUTIONS
|
|
|
9
|
|
|
|
|
|
|
6.1 Form and Timing of Distribution
|
|
|
9
|
|
6.2 Distribution after Death
|
|
|
10
|
|
6.3 Distribution Due to Severe Financial Hardship
|
|
|
10
|
|
6.4 Early Distribution
|
|
|
10
|
|
|
|
|
|
|
7. ADMINISTRATION
|
|
|
11
|
|
|
|
|
|
|
7.1 Administration
|
|
|
11
|
|
7.2 Plan Expenses
|
|
|
11
|
|
7.3 Liability
|
|
|
11
|
|
7.4 Claims Procedure
|
|
|
11
|
|
7.5 Claims Review Procedure
|
|
|
11
|
|
7.6 Notices
|
|
|
11
|
|
|
|
|
|
|
8. AMENDMENT AND TERMINATION
|
|
|
12
|
|
|
|
|
|
|
8.1 Plan Amendment
|
|
|
12
|
|
8.2 Termination of the Plan
|
|
|
12
|
|
|
|
|
|
|
9. GENERAL PROVISIONS
|
|
|
13
|
|
|
|
|
|
|
9.1 Non-Alienation of Benefits
|
|
|
13
|
|
9.2 Adoption by Affiliated Company
|
|
|
13
|
|
9.3 Withdrawal
|
|
|
13
|
|
9.4 Limitation of Rights
|
|
|
13
|
|
9.5 Participants Rights Unsecured
|
|
|
13
|
|
9.6 Withholding
|
|
|
13
|
|
9.7 Severability
|
|
|
14
|
|
9.8 Controlling Law
|
|
|
14
|
|
|
|
|
|
|
SIGNATURE
|
|
|
14
|
|
ii
THE ROYAL CARIBBEAN CRUISES LTD. et al.
NONQUALIFIED 401(K) PLAN
AMENDED AND RESTATED THROUGH DECEMBER 6, 2005
ARTICLE 1. PURPOSE
Royal Caribbean Cruises Ltd. has established The Royal Caribbean Cruises Ltd. et al.
Nonqualified 401(k) Plan, effective January 1, 1998. This amended Plan document contains
amendments through December 6, 2005. The Royal Caribbean Cruises Ltd. et al. Nonqualified 401(k)
Plan is a nonqualified deferred compensation plan for a select group of management or highly
compensated employees of Royal Caribbean Cruises Ltd. and its participating subsidiaries and
affiliated companies as a means of sheltering a portion of an eligible individuals income from
current taxation while accumulating resources for future investments.
With respect to amounts deferred hereunder that are subject to Section 409A of the Internal
Revenue Code of 1986, as amended and any regulations and other official guidance (the Code)
(generally, amounts deferred on and after January 1, 2005), applicable provision of the Plan
document shall be interpreted to permit the deferral of compensation in accordance with Code
Section 409A, and any provision that would conflict with such requirements shall not be valid or
enforceable. In addition, with respect to amounts deferred hereunder that are not subject to
Section 409A (generally, amounts deferred before January 1, 2005) (grandfathered funds), it is
intended that the rules applicable under the Plan as of December 31, 2004, and not Code Section
409A and related official guidance, shall apply with respect to such grandfathered funds.
1
ARTICLE 2. DEFINITIONS
For the purpose of this Plan the following terms shall have the meanings as set forth below
unless the context requires otherwise:
2.1 Affiliated Company
means (a) a member with an Employer of a controlled group of
corporations, (b) an unincorporated trade or business which is under common control with an
Employer as determined in accordance with Section 414(c) of the Code, or (c) a member with an
Employer of an affiliated service group, as defined in Section 414(m) of the Code. A corporation
or an unincorporated trade or business shall not be considered an Affiliated Company during any
period it does not satisfy clause (a), (b), or (c) of this definition. For purposes of this
definition, a controlled group of corporations is a controlled group of corporations as defined
in Section 414(b) of the Code.
2.2 Beneficiary
means the person, persons, trust or other entity a Participant designates by
written revocable designation filed with the Company to receive payments in the event of his or her
death.
2.3 Board
means the Board of Directors of the Company or a committee thereof.
2.4 Bonus
means any discretionary cash bonuses paid for services with an Employer.
2.5 Bonus Deferral
means the Bonus deferral contributions made at the direction of a
Participant by his or her Employer pursuant to Section 4.4
2.6 Code
means the Internal Revenue Code of 1986, as amended from time to time.
2.7 Company
means Royal Caribbean Cruises Ltd. et al and any successor thereto.
2.8 Effective Date
means, with respect to the original Plan document, January 1, 1998, and
with respect to this restated version of the Plan, January 1, 2003.
2.9 Eligible Earnings
shall, for purposes of a Participants Employee Deferral Contributions,
consist of the Participants regular base wages or salary, tips and other cash compensation (other
than Bonuses) by the Employer for a Plan Year reported on Form W-2 plus the amounts deferred for
the Plan Year by the Participant under Section 4.1.
2.10 Eligible Employee
means any Employee of an Employer who is member of a select group of
management or highly compensated employees who has the position of director level employee or above
and who is employed in the United States.
2.11 Employee
means a common law employee of the Company or an Affiliated Company.
2.12 Employee Deferral Contributions
means the salary reduction contributions made at the
direction of a Participant by his or her Employer pursuant to Section 4.1.
2
2.13 Employer
means the Company or any other Affiliated Company which has adopted this Plan
under Section 9.2.
2.14 ERISA
means the Employee Retirement Income Security Act of 1974, as amended.
2.15 Participant
means an Eligible Employee who satisfies the participation requirements under
Article 3.
2.16 Participant Account
means a separate account established and maintained by the Company in
accordance with the terms of the Plan in the name of each Participant consisting of the amounts set
forth in Section 5.1.
2.17 Plan
means the Royal Caribbean Cruises Ltd. et al Nonqualified 401(k) Plan, the Plan set
forth herein, as amended from time to time.
2.18 Plan Year
means a 12-consecutive month period commencing January 1st and ending on the
following December 31st.
2.19 Termination of Employment
means a Participants termination of employment with his or her
Employer and any Affiliated Company, whether voluntary or involuntary, for any reason.
2.20 Valuation Date
means any day on which the New York Stock Exchange or any successor to its
business is open for trading, or such other date as may be designated by the Company.
3
ARTICLE 3. ELIGIBILITY TO PARTICIPATE
3.1 Determination of Eligible Employee Status:
Upon adoption of the Plan, the Company will
notify those Employees who it determines are Eligible Employees. Thereafter, except as otherwise
provided in Section 3.2, prior to each calendar quarter, the Company will notify those Employees
who it determines to have become Eligible Employees for the first time at the beginning of such
calendar quarter. An Employee who is determined to be an Eligible Employee shall thereafter be
eligible to become a Participant in accordance with Section 3.2.
3.2 Commencement of Participation:
Each Eligible Employee shall be provided an opportunity to
designate the percentage of his or her Eligible Earnings to be deferred under Section 4.1 and to
irrevocably designate the percentage or dollar amount of his or her annual Bonus to be deferred
under Section 4.4. Any such Eligible Employee who makes such a designation in the first calendar
quarter of 1998 shall become a Participant on the first day of the first payroll period that
commences in the second calendar quarter of 1998 provided the Eligible Employee is employed as of
such date. Thereafter through December 31, 2004, any such Eligible Employee who (i) makes such a
designation and (ii) has completed 90 days of employment shall become a Participant on the first
day of the month following the month in which such requirements are met, provided the Eligible
Employee is employed as of such date.
Effective on and after January 1, 2005, in the first year in which a Eligible Employee becomes
eligible to participate in the Plan, the Eligible Employee may make a deferral election with
respect to compensation for services to be performed subsequent to the election provided the
election is made within 30 days after the date the Eligible Employee becomes eligible to
participate. In the case of all other Eligible Employees, including any new Eligible Employee who
fails to make an election within the 30-day period described above, deferral elections must be made
no later than December 31 (or such other date designated by the Company) of the year before the
year the services related to the deferral election are to be performed.
Notwithstanding the foregoing provisions of Sections 3.1 and 3.2, effective January 1, 2000,
if the Company determines that an Employee is an Eligible Employee hereunder after such Employee
has ceased to be an eligible employee under the Royal Caribbean Cruises Ltd. 401(k) Plan, such
Eligible Employee may become a Participant in this Plan in accordance with the deferral election
provisions of the preceding paragraph.
Any such designation under this Section 3.2 must be made in the manner authorized by the
Company and must be accompanied by:
(a) an authorization for the Eligible Employees Employer to make regular payroll
deductions to cover the amount of such deferrals elected pursuant to Section 4.1;
(b) an irrevocable authorization to defer receipt of a percentage or a dollar amount
of future Bonus amounts as elected under Section 4.4;
(c) an investment election with respect to any Employee Deferral Contributions and
Bonus Deferrals;
4
(d) a designation of Beneficiary; and
(e) a designation as to the form and timing of the distribution of his or her
Participant Account.
3.3 Cessation of Participation:
A Participant shall cease to be an active Participant on the
earliest of:
(a) the date on which the Plan terminates, or
(b) the date on which he or she ceases to be an Eligible Employee.
A former active Participant will be deemed a Participant for all purposes except with respect to
the right to make contributions, as long as he or she retains a Participant Account.
5
ARTICLE 4. EMPLOYEE DEFERRALS
4.1 Employee Deferral Contributions:
Each Participant may authorize the Employer by which he
or she is employed, in the manner described in Section 3.2, to have an Employee Deferral
Contribution made on his or her behalf. Such election shall apply to the Participants Eligible
Earnings attributable to services performed during the designated period covered by the election,
as provided in Section 3.2. Such Employee Deferral Contribution shall be a stated whole percentage
of the Participants Eligible Earnings, equal to not less than 2% nor more than 20%, as designated
by the Participant. The percentage of Eligible Earnings designated by a Participant to measure the
Employee Deferral Contributions to be made on the Participants behalf shall remain in effect,
notwithstanding any change in his or her Eligible Earnings, until he or she elects to change or
suspend such percentage in accordance with Section 4.2 or Section 4.3, below.
4.2 Changes in Contributions:
A Participant may change his or her contribution percentage
election under Section 4.1 at any time by applying to make such change in the manner prescribed by
the Company. Prior to January 1, 2005, any such change shall become effective as of the first full
payroll period that begins coincident with or immediately following the first day of the calendar
quarter following the date the Participant applies to make such change. On and after January 1,
2005, any such change shall become effective no earlier than the first day of the year following
the date on which the Participant applies to make such change.
4.3 Suspension of Contributions:
A Participant may suspend his or her Employee Deferral
Contributions at any time by applying for a suspension in writing to the Company. Prior to January
1, 2005, any such suspension shall become effective as soon as administratively practicable
following the date the Participant applies for the suspension. On and after January 1, 2005, any
such suspension request shall not become effective before the first day of the year following the
date the Participant applies for the suspension. A Participant whose Employee Deferral
Contributions have been suspended under this section may resume having Employee Deferral
Contributions made on his or her behalf by applying to change his or her contribution percentage
election in accordance with Section 4.2.
4.4 Bonus Deferrals:
Notwithstanding deferrals made under Section 4.1, and except as provided
below with regard to performance-based bonuses, by December 31 of each year, each Participant may
authorize, in writing to the Company, to defer all or a portion of his or her Bonus that would
otherwise be payable for services performed in the twelve-month period beginning on the January 1
immediately following such December 31. In the case of any bonus that is designated by the Company
as a performance-based Bonus and which qualifies as performance-based compensation under Code
Section 409A and related official guidance, a Participants deferral election with respect to all
or a portion of his or her Bonus must be made, in writing to the Company, no later than the date
that is six months before the end of the performance period (which performance period shall be not
less than 12 months) or such other date designated by the Company.
4.5 Vesting of Employee Deferral Contributions and Bonus Deferrals:
A Participants
Employee Deferral Contributions and earnings thereon, and a Participants Bonus Deferral
amounts and earnings thereon, shall be fully vested and nonforfeitable at all times.
6
ARTICLE 5. INVESTMENTS AND PARTICIPANT ACCOUNTS
5.1 Establishment of Accounts:
The Company shall establish the following subaccounts under
each Participant Account and the Company shall contribute amounts deferred under Sections 4.1 and
4.4 into such subaccounts:
(a) an Employee Deferral Contributions Subaccount to which shall be credited the
Participants Employee Deferral Contributions and any earnings and losses credited
thereto; and
(b) a Bonus Deferral Subaccount to which shall be credited the Participants Bonus
Deferrals and any earnings and losses credited thereto.
Each Participant shall receive a quarterly statement reflecting his or her Participant Account
balance.
5.2 Obligation of the Company:
Individual benefits under the Plan are payable as they become
due solely from assets allocated to individual Plan accounts in a rabbi trust or from the general
assets of the Company. To the extent a Participant or any person acquires a right to receive
payments from the Company under this Plan, such right shall be no greater than the right of any
unsecured creditor of the Company. Neither this Plan nor any action taken pursuant to the terms of
this Plan shall be considered to create a fiduciary relationship between the Company and the
Participants or any other persons or to require the establishment of a trust in which the assets
are beyond the claims of any unsecured creditor of the Company.
5.3 Establishment of Investment Funds:
The Company will establish one or more Investment Funds
which will be maintained for the purpose of determining the investment return to be credited to
each Participants Account. The Company may change the number, identity or composition of the
Investment Funds from time to time. Each Participant will indicate the Investment Funds based on
which amounts allocated in accordance with Articles 4 and 5 are to be adjusted. Each Participants
Account will be increased or decreased by the net amount of investment earnings or losses that it
would have achieved had it actually been invested in the deemed investments. The Company is not
required to purchase or hold any of the deemed investments. Investment Fund elections must be made
in a minimum of 1% increments and in such manner as the Company will specify. A Participant may
change his or her Investment Fund election periodically by completing a revised Participant
Election Form and delivering it to the Vice President of Human Resources. Any such change shall
become effective as of the first business day coincident with or immediately following the date the
Participant applies to make such change. As the Participants Account increases, the investment of
such amounts shall remain invested in the deemed investment previously designated until the
Participant requests a change in accordance with this Section or the Company no longer includes
that deemed investment as one of the available Investment Funds. If a Participant fails to make an
Investment Fund election, the amount in the Participants Account will be deemed to have been
invested in a money market fund or any other fund as determined by the Company.
5.4 Crediting Investment Results:
No less frequently than as of each Valuation Date, each
Participant Account will be increased or decreased to reflect investment results. Each
7
Participant Account will be credited with the investment return of the Investment Funds in which the
Participant elected to be deemed to participate. The credited investment return is intended to
reflect the actual performance of the Investment Funds net of any applicable investment management
fees or administrative expenses determined by the Company. Notwithstanding the above, the amount
of any payment of Plan benefits pursuant to Article 6 or upon Plan termination shall be determined
as of the Valuation Date preceding the date of payment.
8
ARTICLE 6. DISTRIBUTIONS
6.1 Form and Timing of Distribution:
Each Participant shall elect the form and timing of the
distribution with respect to his or her Participant Account in the manner authorized by the
Company.
(a) Form of Payment: The Participants election shall indicate the form of
distribution of his or her entire Participant Account in a lump sum or in monthly
installments as selected by the Participant.
(b) Time of Payment: The Participants election shall indicate that payment shall
be made (in the case of a lump sum election) or shall commence (in the case of an
installment election):
(1) as soon as administratively practicable following the Participants
Termination of Employment which shall in no event exceed 21 days beyond such
Termination of Employment;
(2) as soon as administratively practicable following the calendar year of
the Participants Termination of Employment which shall in no event exceed
21 days beyond the end of such calendar year;
(3) in the month following the Participants attainment of age 65, provided
that the Participant is no longer employed as of such date; or
(4) in a specific month and year.
Notwithstanding the foregoing, if a Participant elects his or her distribution to be made or
commenced in accordance with paragraph 3 above, and such date falls before the Participants
Termination of Employment, the Participants distribution shall be made or commenced in
accordance with paragraph 1 above. Further, if a Participant elects his or her distribution
to be made or commenced in accordance with paragraph 4 above, and such date falls before the
Participants Termination of Employment, the Participant must complete new designations and
authorizations pursuant to Section 3.2 in order to continue making Employee Deferral
Contributions and/or Bonus Deferrals.
Notwithstanding anything herein to the contrary, and solely with respect to funds that are
subject to Code Section 409A (generally, amounts deferred on and after January 1, 2005),
payment shall not be made or commence to any Participant who is a key employee (defined
below) as a result of the Participants Termination of Employment before the date that is
not less than six months after the date of Termination of Employment (or, if earlier, the
date of death of the Participant). For this purpose, a key employee is a key employee as
defined in Code Section 416(i).
Notwithstanding the foregoing, a Participant may change his or her form and timing election
applicable to the distribution of his or her Participant Account, provided that such request for
change is made (i) at least twelve (12) consecutive months prior to the date on which such
distribution would otherwise have been made or commenced, (ii) at least twelve (12) consecutive
9
months prior to the date on which such distribution will be made or commence, and (iii) solely with
respect to amounts deferred under the Plan which are subject to Code Section 409A (generally,
amounts deferred on and after January 1, 2005), such that the payment with respect to an amended
distribution election is deferred for a period of not less than 5 years from the date such payment
would otherwise have been paid (or, in the case of installment payments, 5 years from the date the
first amount was scheduled to be paid).
6.2 Distribution after Death:
Notwithstanding the foregoing, if a Participant dies prior to
receiving the entire amounts in his or her Participant Account, the remaining amounts shall be paid
in a lump sum to the Participants Beneficiary designated by the Participant as soon as practicable
following the Participants death. The amount of any such distribution shall be determined as of
the most recent Valuation Date preceding the month in which the Company is notified of the
Participants death.
6.3 Distribution Due to Severe Financial Hardship:
Notwithstanding the foregoing,
distributions hereunder may commence if the Company determines, based upon uniform, established
standards, that the Participant has: (a) suffered a severe financial hardship, and (b) exhausted
all other financial resources that are reasonably available to such Participant. Upon such
determination, the Participant will receive an amount necessary to satisfy the severe financial
hardship but in no event will the Participant receive less than $500, nor more than the total of
all deferrals made by the Participant, plus interest credited to the Participants Account as of
the date of the distribution. The Company shall determine the Investment Fund or Funds under
Section 5.3 from which the amount necessary to satisfy the severe financial hardship shall be
distributed. In the event of a finding of a hardship, the Company may limit the Participants
current Bonus Deferral.
With respect to amounts deferred hereunder which are subject to Code Section 409A (generally,
amounts deferred on and after January 1, 2005), distributions due to severe financial hardship
shall be made solely in accordance with the provisions of Code Section 409A and related official
guidance.
6.4 Early Distribution:
Notwithstanding any other provision of the Plan, including Sections
6.1 and 6.3, and effective solely with respect to amounts deferred under the Plan prior to January
1, 2005 and not otherwise subject to Code Section 409A, a Participant at any time may make a
written request to the Company to immediately receive a lump sum distribution equal to ninety
percent (90%) of the entire applicable vested portion of his or her Participant Account. The
remaining applicable balance of his or her Participant Account from which a payment has been made
pursuant to this Section 6.4 shall be forfeited by the Participant. The amount payable under this
section shall be paid within twenty-one (21) days following receipt of written notice by the
Company.
10
ARTICLE 7. ADMINISTRATION
7.1 Administration:
The Plan shall be administered by the Company. The Company shall have the
full and exclusive discretionary authority to administer the Plan, and any responsibilities and
duties under this Plan which are not specifically delegated to anyone else. Responsibility for
determining the eligibility of Employees and establishing the requirements for participation shall
be vested in the Company, which shall be responsible for any interpretation of the Plan that may be
required. Notwithstanding the foregoing, the Company may delegate any of its administrative duties
as necessary.
7.2 Plan Expenses:
The expenses of administering the Plan shall be borne by the Company.
7.3 Liability:
The Company shall not be liable to any person for any action taken or omitted
in connection with the administration of this Plan unless attributable to the fraud or willful
misconduct on the part of a director, officer or agent of the Company.
7.4 Claims Procedure:
Any person claiming a benefit, requesting an interpretation or ruling
under the Plan, or requesting information under the Plan shall present the request in writing to
the Companys Vice President of Human Resources, who shall respond in writing as soon as
practicable. If the claim or request is denied, the written notice of denial shall state:
(a) The reasons for denial, with specific reference to the Plan provisions on which
the denial is based.
(b) A description of any additional material or information required and an
explanation of why it is necessary.
(c) An explanation of the Plans claim review procedure.
7.5 Claims Review Procedure:
Any person whose claim or request is denied or who has not
received a response within 30 calendar days may request review by notice given in writing to the
Companys Vice President of Human Resources. The claim or request shall be reviewed by the
Companys Vice President of Human Resources, who may, but shall not be required to, grant the
claimant a hearing. On review, the claimant may have representation, examine pertinent documents,
and submit issues and comments in writing.
The decision on review shall normally be made within 60 calendar days. If an extension of
time is required for a hearing or other special circumstances, the claimant shall be notified and
the time limit shall be 120 calendar days. The decision shall be in writing and shall state the
reasons and the relevant Plan provisions. All decisions on review shall be final and binding on
all parties concerned.
7.6 Notices:
Any notices, designations or other communications to be given to the Company or
an Employer by any Eligible Employee,
Participant or Beneficiary shall only be effective if delivered to the Companys Vice
President of Human Resources.
11
ARTICLE 8. AMENDMENT AND TERMINATION
8.1 Plan Amendment:
The Plan may be amended or otherwise modified by the Board, in whole or in
part, provided that no amendment or modification shall divest any Participant of any amount
previously credited to his or her Participant Account under Article 4 or of the amount and method
of crediting earnings to such Participant Account under Article 5 of the Plan as of the date of
such amendment. Notwithstanding anything herein to the contrary, in no event shall any amendment
be made in a manner that is inconsistent with the requirements to avoid adverse federal tax
consequences under Section 409A of the Code.
8.2 Termination of the Plan:
The Board reserves the right to terminate the Plan at any time in
whole or in part. In the event of any such termination, the Company shall pay a benefit to the
Participant or the Beneficiary of any deceased Participant, in lieu of other benefits hereunder,
equal to the value of the Participants Account in the form and at the benefit commencement date
elected by the Participant pursuant to Article 6 of the Plan. Earnings shall continue to be
allocated under Article 5 of the Plan after the termination of the Plan until the Participants
benefits have been paid in full notwithstanding the termination of the Plan.
Notwithstanding anything herein to the contrary, in no event shall any termination be made in a
manner that is inconsistent with the requirements to avoid adverse federal tax consequences under
Section 409A of the Code.
12
ARTICLE 9. GENERAL PROVISIONS
9.1 Non-Alienation of Benefits:
No benefit under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge and any such
action shall be void for all purposes of the Plan. No benefit shall in any manner be subject to
the debts, contracts, liabilities, engagements or torts of any person, nor shall it be subject to
attachments or other legal process for or against any person, except to such extent as may be
required by law.
9.2 Adoption by Affiliated Company:
Any Affiliated Company, whether or not presently
existing, may, with the written approval of the Board, adopt this Plan by proper corporate action.
9.3 Withdrawal:
Any Employer may at any time withdraw from the Plan upon giving the Board at
least 30 calendar days written notice of its intention to withdraw. The Board in its discretion
may require, in writing, that an Employer withdraw from the Plan.
9.4 Limitation of Rights:
Neither the establishment of this Plan, nor any modification
thereof, nor the creation of an account, nor the payment of any benefits shall be construed as
giving
(a) any Participant, Beneficiary, or any other person whomsoever, any legal or
equitable right against the Company or an Employer unless such right shall be
specifically provided for in the Plan or conferred by affirmative action of the
Administrator in accordance with the terms and provisions of the Plan; or
(b) any Participant, or other person whomsoever, the right to be retained in the
service of the Company or an Employer, and all Participants and other Employees
shall remain subject to termination to the same extent as if the Plan had never been
adopted.
9.5 Participants Rights Unsecured:
The right of any Participant or Beneficiary to receive
payment under the provisions of the Plan shall be as an unsecured claim against Employer, as the
case may be, and no provisions contained in the Plan shall be construed to give any Participant or
Beneficiary at any time a security interest in the Participants Account or any asset of the
Company or an Employer. The liabilities of the Company or an Employer to any Participant or
Beneficiary pursuant to the Plan shall be those of a debtor pursuant to such contractual
obligations as are created by the Plan. Accounts, if any, which may be set aside by the Company or
an Employer for accounting purposes shall not in any way be held in trust for, or to be subject to
the claims of a Participant or Beneficiary.
9.6 Withholding:
There shall be deducted from all payments under this Plan the amount of any
taxes required to be withheld by any Federal, state or local government. The Participants and
their Beneficiaries, distributees, and personal
representatives will bear any and all Federal, foreign, state, local or other income or other
taxes imposed on amounts paid under this Plan.
13
9.7 Severability:
Should any provision of the Plan or any regulations adopted thereunder be
deemed or held to be unlawful or invalid for any reason, such fact shall not adversely affect the
other provisions or regulations unless such invalidity shall render impossible or impractical the
functioning of the Plan and, in such case, the appropriate parties shall adopt a new provision or
regulation to take the place of the one held illegal or invalid.
9.8 Controlling Law:
The Plan shall be governed by the laws of the State of Florida, except
to the extent preempted by ERISA and any other law of the United States.
SIGNATURE
IN WITNESS WHEREOF, an officer of the Company hereby executes this Plan, as Amended and
Restated through December 6, 2005, as of the
6th
day of
December
2005.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ROYAL CARIBBEAN CRUISES LTD.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attest:
|
|
/s/ BRADLEY H. STEIN
|
|
|
|
By:
|
|
/s/ THOMAS F. MURRILL
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bradley H. Stein
|
|
|
|
|
|
Thomas F. Murrill
|
|
|
|
|
Assistant Secretary
|
|
|
|
|
|
Vice President and
|
|
|
|
|
|
|
|
|
|
|
Chief Human Resources Officer
|
|
|
14
EXHIBIT 10.4
THE ROYAL CARIBBEAN CRUISES LTD. ET AL
BOARD OF DIRECTORS NONQUALIFIED
DEFERRED COMPENSATION PLAN
AMENDED AND RESTATED THROUGH DECEMBER 6, 2005
THE ROYAL CARIBBEAN CRUISES LTD ET AL
BOARD OF DIRECTORS
NONQUALIFIED DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
|
|
|
|
|
Article
|
|
Page
|
|
|
1. PURPOSE
|
|
|
1
|
|
|
|
|
|
|
2. DEFINITIONS
|
|
|
2
|
|
|
|
|
|
|
2.1 Annual Retainer
|
|
|
2
|
|
2.2 Beneficiary
|
|
|
2
|
|
2.3 Board
|
|
|
2
|
|
2.4 Code
|
|
|
2
|
|
2.5 Company
|
|
|
2
|
|
2.6 Effective Date
|
|
|
2
|
|
2.7 Eligible Earnings
|
|
|
2
|
|
2.8 ERISA
|
|
|
2
|
|
2.9 Meeting Fees
|
|
|
2
|
|
2.10 Participant
|
|
|
2
|
|
2.11 Participant Account
|
|
|
2
|
|
2.12 Participant Deferral Contributions
|
|
|
2
|
|
2.13 Plan
|
|
|
2
|
|
2.14 Plan Year
|
|
|
2
|
|
2.15 Termination of Employment
|
|
|
2
|
|
2.16 Valuation Date
|
|
|
3
|
|
|
|
|
|
|
3. ELIGIBILITY TO PARTICIPATE
|
|
|
4
|
|
|
|
|
|
|
3.1 Determination of Participant Status
|
|
|
4
|
|
3.2 Commencement of Participation
|
|
|
4
|
|
3.3 Cessation of Participation
|
|
|
4
|
|
|
|
|
|
|
4. PARTICIPANT DEFERRALS
|
|
|
5
|
|
|
|
|
|
|
4.1 Participant Deferral Contributions
|
|
|
5
|
|
4.2 Changes in Contributions
|
|
|
5
|
|
4.3 Suspension of Contributions
|
|
|
5
|
|
|
|
|
|
|
5. INVESTMENTS AND PARTICIPANT ACCOUNTS
|
|
|
6
|
|
|
|
|
|
|
5.1 Establishment of Accounts
|
|
|
6
|
|
5.2 Obligation of the Company
|
|
|
6
|
|
5.3 Establishment of Investment Funds
|
|
|
6
|
|
5.4 Crediting Investment Results
|
|
|
6
|
|
|
|
|
|
|
6. DISTRIBUTIONS
|
|
|
8
|
|
|
|
|
|
|
6.1 Form and Timing of Distribution
|
|
|
8
|
|
6.2 Distribution after Death
|
|
|
8
|
|
6.3 Early Distribution
|
|
|
9
|
|
THE ROYAL CARIBBEAN CRUISES LTD ET AL
BOARD OF DIRECTORS
NONQUALIFIED DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
|
|
|
|
|
Article
|
|
Page
|
|
|
7. ADMINISTRATION
|
|
|
10
|
|
|
|
|
|
|
7.1 Administration
|
|
|
10
|
|
7.2 Plan Expenses
|
|
|
10
|
|
7.3 Liability
|
|
|
10
|
|
7.4 Claims Procedure
|
|
|
10
|
|
7.5 Claims Review Procedure
|
|
|
10
|
|
7.6 Notices
|
|
|
10
|
|
|
|
|
|
|
8. AMENDMENT AND TERMINATION
|
|
|
11
|
|
|
|
|
|
|
8.1 Plan Amendment
|
|
|
11
|
|
8.2 Termination of the Plan
|
|
|
11
|
|
|
|
|
|
|
9. GENERAL PROVISIONS
|
|
|
12
|
|
|
|
|
|
|
9.1 Non-Alienation of Benefits
|
|
|
12
|
|
9.2 Limitation of Rights
|
|
|
12
|
|
9.3 Participants Rights Unsecured
|
|
|
12
|
|
9.4 Withholding
|
|
|
12
|
|
9.5 Severability
|
|
|
12
|
|
9.6 Controlling Law
|
|
|
12
|
|
|
|
|
|
|
SIGNATURE
|
|
|
13
|
|
ii
THE ROYAL CARIBBEAN CRUISES LTD. et al.
BOARD OF DIRECTORS
NONQUALIFIED DEFERRED COMPENSATION PLAN
AMENDED AND RESTATED THROUGH DECEMBER 6, 2005
ARTICLE 1. PURPOSE
Royal Caribbean Cruises Ltd. has established The Royal Caribbean Cruises Ltd. et al. Board of
Directors Nonqualified 401(k) Plan, effective July 1, 2003. The Royal Caribbean Cruises Ltd. et al.
Board of Directors Nonqualified Deferred Compensation Plan is a nonqualified deferred compensation
plan for the members of the Board of Directors of Royal Caribbean Cruises Ltd. as a means of
deferring a portion of an eligible individuals current income and to accumulate resources for
future investments.
With respect to amounts deferred hereunder that are subject to Section 409A of the Internal
Revenue Code of 1986, as amended and any regulations and other official guidance (the Code)
(generally, amounts deferred on and after January 1, 2005), applicable provision of the Plan
document shall be interpreted to permit the deferral of compensation in accordance with Code
Section 409A, and any provision that would conflict with such requirements shall not be valid or
enforceable. In addition, with respect to amounts deferred hereunder that are not subject to
Section 409A (generally, amounts deferred before January 1, 2005) (grandfathered funds), it is
intended that the rules applicable under the Plan as of December 31, 2004, and not Code Section
409A and related official guidance, shall apply with respect to such grandfathered funds.
1
ARTICLE 2. DEFINITIONS
For the purpose of this Plan the following terms shall have the meanings as set forth below
unless the context requires otherwise:
2.1 Annual Retainer
means cash compensation payable to Board members for service on the Board
and on Board committees.
2.2 Beneficiary
means the person, persons, trust or other entity a Participant designates by
written revocable designation filed with the Company to receive payments in the event of his or her
death.
2.3 Board
means the Board of Directors of the Company.
2.4 Code
means the Internal Revenue Code of 1986, as amended from time to time.
2.5 Company
means Royal Caribbean Cruises Ltd. et al and any successor thereto.
2.6 Effective Date
means July 1, 2003.
2.7 Eligible Earnings
shall, for purposes of a Participants Deferral Contributions, consist
of the Participants Annual Retainer and Meeting Fees.
2.8 ERISA
means the Employee Retirement Income Security Act of 1974, as amended.
2.9 Meeting Fees
means cash compensation payable to Board members for attendance at Board
meetings and at Board committee meetings.
2.10 Participant
means any non-employee Board member who elects to participate in the Plan.
2.11 Participant Deferral Contributions
means the deferred contributions made at the direction
of a Participant by the Company pursuant to Section 4.1.
2.12 Participant Account
means a separate account established and maintained by the Company in
accordance with the terms of the Plan in the name of each Participant consisting of the amounts set
forth in Section 5.1.
2.13 Plan
means the Royal Caribbean Cruises Ltd. et al Board of Directors Nonqualified
Deferred Compensation Plan, the Plan set forth herein, as amended from time to time.
2.14 Plan Year
means a 12-consecutive month period commencing January 1st and ending on the
following December 31st.
2.15 Termination of Service
means a Participants termination of service on the Board.
2
2.16 Valuation Date
means any day on which the New York Stock Exchange or any successor to its
business is open for trading, or such other date as may be designated by the Company.
3
ARTICLE 3. ELIGIBILITY TO PARTICIPATE
3.1 Determination of Participant Status:
Upon adoption of the Plan, the Company will notify
the Board of their eligibility to participate in the Plan. Thereafter, except as otherwise
provided in Section 3.2, prior to each calendar quarter, the Company will notify those new members
of the Board of their eligibility to participate.
3.2 Commencement of Participation:
Each Participant shall be provided an opportunity to
designate the percentage of his or her Eligible Earnings to be deferred under Section 4.1. Any
Participant who makes such a designation in the second calendar quarter of 2003 shall become a
Participant on the first day of the following month, with respect to Eligible Earnings earned on or
after the Effective Date only, provided the Eligible Participant is a member of the Board as of
such date. Thereafter through December 31, 2004, any such Participant who makes such a designation
shall become a Participant on the first day of the following calendar month. Effective on and
after January 1, 2005, in the case of the first year in which a Board member becomes eligible to
participate in the Plan, the Board member may make a deferral election with respect to services to
be performed subsequent to the election provided the election is made within 30 days after the date
the Board member becomes eligible to participate. In the case of all other Board members,
including any newly eligible Board member who fails to make an election within the 30-day period
described above, deferral elections must be made no later than December 31 (or such other prior
date designated by the Company) of the year before the year the services related to the deferral
election are to be performed.
Any such designation must be made in the manner authorized by the Company and must be
accompanied by:
(a) an authorization by the Participant for the Company to make deductions to cover
the amount of such deferrals elected pursuant to Section 4.1;
(b) an investment election with respect to any Participant Deferral Contributions;
(c) a designation of Beneficiary; and
(d) a designation as to the form and timing of the distribution of his or her
Participant Account.
3.3 Cessation of Participation:
A Participant shall cease to be a Participant on the earliest
of:
(a) the date on which the Plan terminates; or
(b) the date on which he or she receives a complete distribution of his or her
Participant Account.
4
ARTICLE 4. PARTICIPANT DEFERRALS
4.1 Participant Deferral Contributions:
Each Participant may authorize the Company, in the
manner described in Section 3.2, to have a Participant Deferral Contribution made on his or her
behalf. Such election shall apply to the Participants Eligible Earnings attributable to services
performed during the designated period covered by the election, as provided in Section 3.2. Such
Participant Deferral Contribution shall be a stated whole percentage of the Participants Eligible
Earnings, equal to not less than 10% nor more than 100%, as designated by the Participant. The
percentage of Eligible Earnings designated by a Participant to measure the Participant Deferral
Contributions to be made on the Participants behalf shall remain in effect, notwithstanding any
change in his or her Eligible Earnings, until he or she elects to change or suspend such percentage
in accordance with Section 4.2 or Section 4.3, below.
4.2 Changes in Contributions:
A Participant may change his or her contribution percentage
election under Section 4.1 by applying to make such change in the manner prescribed by the Company.
Prior to January 1, 2005, any such change shall become effective no earlier than the first day of
the month following the date on which the Participant applies to make such change. On and after
January 1, 2005, any such change shall become effective no earlier than the first day of the year
following the date on which the Participant applies to make such change.
4.3 Suspension of Contributions:
A Participant may suspend his or her Participant Deferral
Contributions at any time by applying for a suspension in writing to the Company. Prior to January
1, 2005, any such suspension request shall become effective as soon as administratively practicable
following the date the Participant applies for the suspension. On and after January 1, 2005, any
such suspension request shall not become effective before the first day of the year following the
date the Participant applies for the suspension. A Participant whose Deferral Contributions have
been suspended under this section may resume having Deferral Contributions made on his or her
behalf by applying to change his or her contribution percentage election in accordance with Section
4.2.
5
ARTICLE 5. INVESTMENTS AND PARTICIPANT ACCOUNTS
5.1 Establishment of Accounts:
The Company shall establish a Participant Account to which
shall be credited the Participants Deferral Contributions and any earnings and losses credited
thereto.
Each Participant shall receive a quarterly statement reflecting his or her Participant Account
balance.
5.2 Obligation of the Company:
Individual benefits under the Plan are payable as they become
due solely from assets allocated to individual Participant Accounts in a rabbi trust or from the
general assets of the Company. To the extent a Participant or any person acquires a right to
receive payments from the Company under this Plan, such right shall be no greater than the right of
any unsecured creditor of the Company. Neither this Plan nor any action taken pursuant to the
terms of this Plan shall be considered to create a fiduciary relationship between the Company and
the Participants or any other persons or to require the establishment of a trust in which the
assets are beyond the claims of any unsecured creditor of the Company.
5.3 Establishment of Investment Funds:
The Company will establish one or more Investment
Funds which will be maintained for the purpose of determining the investment return to be credited
to each Participants Account. The Company may change the number, identity or composition of the
Investment Funds from time to time. Each Participant will indicate the Investment Funds based on
which amounts allocated in accordance with Articles 4 and 5 are to be adjusted. Each Participants
Account will be increased or decreased by the net amount of investment earnings or losses that it
would have achieved had it actually been invested in the deemed investments. The Company is not
required to purchase or hold any of the deemed investments. Investment Fund elections must be made
in a minimum of 1% increments and in such manner as the Company will specify. A Participant may
change his or her Investment Fund election periodically by completing a revised Participant
Election Form and delivering it to the Vice President of Human Resources. Any such change shall
become effective as of the first business day coincident with or immediately following the date the
Participant applies to make such change. As the Participants Account increases, the investment of
such amounts shall remain invested in the deemed investment previously designated until the
Participant requests a change in accordance with this Section or the Company no longer includes
that deemed investment as one of the available Investment Funds. If a Participant fails to make an
Investment Fund election, the amount in the Participants Account will be deemed to have been
invested in a money market fund or any other fund as determined by the Company.
5.4 Crediting Investment Results:
No less frequently than as of each Valuation Date, each
Participant Account will be increased or decreased to reflect deemed investment results. Each
Participant Account will be credited with the deemed investment return of the Investment Funds in
which the Participant elected to be deemed to participate. The credited investment return is
intended to reflect the actual
performance of the Investment Funds net of any applicable investment management fees or
administrative expenses determined by the Company. Notwithstanding the above, the amount of any
payment of Plan benefits pursuant to
6
Article 6 or upon Plan termination shall be determined as of
the Valuation Date preceding the date of payment.
7
ARTICLE 6. DISTRIBUTIONS
6.1 Form and Timing of Distribution:
Each Participant shall elect the form and timing of the
distribution with respect to his or her Participant Account in the manner authorized by the
Company.
(a) Form of Payment: The Participants election shall indicate the form of
distribution of his or her entire Participant Account in a lump sum or in monthly
installments as selected by the Participant.
(b) Time of Payment: The Participants election shall indicate that payment shall
be made (in the case of a lump sum election) or shall commence (in the case of an
installment election):
(1) as soon as administratively practicable following the Participants
Termination of Service as a member of the Board which shall in no event
exceed 21 days beyond such Termination of Service;
(2) as soon as administratively practicable following the calendar year of
the Participants Termination of Service as a member of the Board which
shall in no event exceed 21 days beyond the end of such calendar year; or
(3) in a specific month and year.
Notwithstanding the foregoing, if a Participant elects his or her distribution to be made or
commenced in accordance with paragraph 3 above, and such date falls before the Participants
Termination of Service, the Participants distribution shall be made or commenced in
accordance with paragraph 1 above. Further, if a Participant elects his or her distribution
to be made or commenced in accordance with paragraph 3 above, and such date falls before the
Participants Termination of Service, the Participant must complete new designations and
authorizations pursuant to Section 3.2 in order to continue making Participant Deferral
Contribution.
Notwithstanding the foregoing, a Participant may change his or her form and timing election
applicable to the distribution of his or her Participant Account, provided that such request for
change is made (i) at least twelve (12) consecutive months prior to the date on which such
distribution would otherwise have been made or commenced, (ii) at least twelve (12) consecutive
months prior to the date on which such distribution will be made or commence, and (iii) solely with
respect to amounts deferred under the Plan which are subject to Code Section 409A (generally,
amounts deferred on and after January 1, 2005), such that the payment with respect to an amended
distribution election is deferred for a period of not less than 5 years from the date such payment
would otherwise have been paid (or, in the case of installment payments, 5 years from the date the
first amount was scheduled to be paid).
6.2 Distribution after Death:
Notwithstanding the foregoing, if a Participant dies prior to
receiving the entire amounts in his or
her Participant Account, the remaining amounts
8
shall be paid in a lump sum to the
Participants Beneficiary designated by the Participant as soon as practicable following the
Participants death. The amount of any such distribution shall be determined as of the most recent
Valuation Date preceding the month in which the Company is notified of the Participants death.
6.3 Early Distribution:
Notwithstanding any other provision of the Plan, including Sections
6.1 and 6.3, and effective solely with respect to amounts deferred under the Plan prior to January
1, 2005 and not otherwise subject to Code Section 409A, a Participant may, one time per year, make
a written request to the Company to immediately receive a lump sum distribution equal to ninety
percent (90%) of the entire applicable portion of his or her Participant Account as adjusted under
Section 9.4. The remaining applicable balance of his or her Participant Account from which a
payment has been made pursuant to this Section 6.3 shall be forfeited by the Participant.
Following receipt of written notice by the Company the Participant shall be precluded from
participating in the Plan for one year following such distribution.
9
ARTICLE 7. ADMINISTRATION
7.1 Administration:
The Plan shall be administered by the Company. The Company shall have the
full and exclusive discretionary authority to administer the Plan, and any responsibilities and
duties under this Plan which are not specifically delegated to anyone else. Responsibility for
determining the eligibility of Participants and establishing the requirements for participation
shall be vested in the Company, which shall be responsible for any interpretation of the Plan that
may be required. Notwithstanding the foregoing, the Company may delegate any of its administrative
duties as necessary.
7.2 Plan Expenses:
The expenses of administering the Plan shall be borne by the Company.
7.3 Liability:
The Company shall not be liable to any person for any action taken or omitted
in connection with the administration of this Plan unless attributable to the fraud or willful
misconduct on the part of a director, officer or agent of the Company.
7.4 Claims Procedure:
Any person claiming a benefit, requesting an interpretation or ruling
under the Plan, or requesting information under the Plan shall present the request in writing to
the Companys Vice President and Chief Human Resource Officer, who shall respond in writing as soon
as practicable. If the claim or request is denied, the written notice of denial shall state:
(a) The reasons for denial, with specific reference to the Plan provisions on which
the denial is based.
(b) A description of any additional material or information required and an
explanation of why it is necessary.
(c) An explanation of the Plans claim review procedure.
7.5 Claims Review Procedure:
Any person whose claim or request is denied or who has not
received a response within 30 calendar days may request review by notice given in writing to the
Companys Vice President and Chief Human Resource Officer. The claim or request shall be reviewed
by the Companys Vice President and Chief Human Resource Officer, who may, but shall not be
required to, grant the claimant a hearing. On review, the claimant may have representation,
examine pertinent documents, and submit issues and comments in writing.
The decision on review shall normally be made within 60 calendar days. If an extension of
time is required for a hearing or other special circumstances, the claimant shall be notified and
the time limit shall be 120 calendar days. The decision shall be in writing and shall state the
reasons and the relevant Plan provisions. All decisions on review shall be final and binding on
all parties concerned.
7.6 Notices:
Any notices, designations or other communications to be given to the Company by
any Eligible Participant or Beneficiary shall only be effective if delivered to the Companys Vice
President and Chief Human Resource Officer.
10
ARTICLE 8. AMENDMENT AND TERMINATION
8.1 Plan Amendment:
The Plan may be amended or otherwise modified by the Board, in whole or in
part, provided that no amendment or modification shall divest any Participant of any amount
previously credited to his or her Participant Account under Article 4 or of the amount and method
of crediting earnings to such Participant Account under Article 5 of the Plan as of the date of
such amendment. Notwithstanding anything herein to the contrary, in no event shall any amendment
be made in a manner that is inconsistent with the requirements to avoid adverse federal tax
consequences under Section 409A of the Code.
8.2 Termination of the Plan:
The Board reserves the right to terminate the Plan at any time in
whole or in part. In the event of any such termination, the Company shall pay a benefit to the
Participant or the Beneficiary of any deceased Participant, in lieu of other benefits hereunder,
equal to the value of the Participants Account in the form and at the benefit commencement date
elected by the Participant pursuant to Article 6 of the Plan. Earnings shall continue to be
allocated under Article 5 of the Plan after the termination of the Plan until the Participants
benefits have been paid in full notwithstanding the termination of the Plan. Notwithstanding the
above, the Company reserves the right to pay out Participants in a lump sum their Participant
Account as soon as practicable following the termination of the Plan.
Notwithstanding
anything herein to the contrary, in no event shall any termination be made in a manner that is
inconsistent with the requirements to avoid adverse federal tax consequences under Section 409A of
the Code.
11
ARTICLE 9. GENERAL PROVISIONS
9.1 Non-Alienation of Benefits:
No benefit under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge and any such
action shall be void for all purposes of the Plan. No benefit shall in any manner be subject to
the debts, contracts, liabilities, engagements or torts of any person, nor shall it be subject to
attachments or other legal process for or against any person, except to such extent as may be
required by law.
9.2 Limitation of Rights:
Neither the establishment of this Plan, nor any modification
thereof, nor the creation of an account, nor the payment of any benefits shall be construed as
giving
(a) any Participant, Beneficiary, or any other person whomsoever, any legal or
equitable right against the Company, unless such right shall be specifically
provided for in the Plan or conferred by affirmative action of the Administrator in
accordance with the terms and provisions of the Plan; or
(b) any Participant, or other person whomsoever, the right to be retained in the
service of the Company.
9.3 Participants Rights Unsecured:
The right of any Participant or Beneficiary to receive
payment under the provisions of the Plan shall be as an unsecured claim against Company, as the
case may be, and no provisions contained in the Plan shall be construed to give any Participant or
Beneficiary at any time a security interest in the Participants Account or any asset of the
Company. The liabilities of the Company to any Participant or Beneficiary pursuant to the Plan
shall be those of a debtor pursuant to such contractual obligations as are created by the Plan.
Accounts, if any, which may be set aside by the Company for accounting purposes shall not in any
way be held in trust for, or to be subject to the claims of a Participant or Beneficiary.
9.4 Withholding:
There shall be deducted from all payments under this Plan the amount of any
taxes required to be withheld by any Federal, state or local government. The Participants and
their Beneficiaries, distributees, and personal representatives will bear any and all Federal,
foreign, state, local or other income or other taxes imposed on amounts paid under this Plan.
9.5 Severability:
Should any provision of the Plan or any regulations adopted thereunder be
deemed or held to be unlawful or invalid for any reason, such fact shall not adversely affect the
other provisions or regulations unless such invalidity shall render impossible or impractical the
functioning of the Plan and, in such case, the appropriate parties shall adopt a new provision or
regulation to take the place of the one held illegal or invalid.
9.6 Controlling Law:
The Plan shall be governed by the laws of the State of Florida, except
to the extent preempted by ERISA and any other law of the United States.
12
SIGNATURE
IN WITNESS WHEREOF, an officer of the Company hereby executes this Plan, as amended and
restated through December 6, 2005, as of the
6th
day of
December
2005.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ROYAL CARIBBEAN CRUISES LTD.
|
|
|
|
|
|
|
|
|
|
|
|
Attest:
|
|
/s/ BRADLEY H. STEIN
|
|
|
|
By:
|
|
/s/ THOMAS F. MURRILL
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bradley H. Stein
|
|
|
|
Thomas F. Murrill
|
|
|
Assistant Secretary
|
|
|
|
Vice President and
|
|
|
|
|
|
|
Chief Human Resources Officer
|
13