As filed with the Securities and Exchange Commission on June 30, 2016
Registration No. 333–
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NORWEGIAN CRUISE LINE HOLDINGS LTD.
(Exact Name of Registrant as Specified in Its Charter)
| Bermuda | 98-0691007 |
| (State or Other Jurisdiction of | (I.R.S. Employer |
| Incorporation or Organization) | Identification No.) |
7665 Corporate Center Drive
Miami,
Florida 33126
(Address, Including Zip Code, of Principal Executive Offices)
Norwegian Cruise Line Holdings Ltd.
Amended and Restated 2013 Performance Incentive Plan
(Full Title of the Plan)
Daniel
S. Farkas
Senior Vice President, General Counsel, and Assistant Secretary
Norwegian Cruise Line Holdings Ltd.
7665 Corporate Center Drive
Miami,
Florida 33126
(305) 436-4000
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer þ | Accelerated filer ¨ |
| Non-accelerated filer ¨ | Smaller reporting company ¨ |
CALCULATION OF REGISTRATION FEE
|
Title
of
Securities To Be Registered |
Amount
To Be Registered |
Proposed
Maximum Offering Price Per Share |
Proposed
Maximum Aggregate Offering Price |
Amount
Of
Registration Fee |
||||||||||
| Ordinary Shares, $0.001 par value per share |
12,430,000
(1)
|
$ | 39.11 | (2) | $ | 486,137,300.00 | (2) | $ | 48,954.03 | (2) | ||||
| (1) | This Registration Statement covers, in addition to the number of Norwegian Cruise Line Holdings Ltd., a company organized under the laws of Bermuda (the “Company” or the “Registrant”), ordinary shares, par value $0.001 per share (the “Ordinary Shares”), stated above, options and other rights to purchase or acquire the Ordinary Shares covered by this Registration Statement and, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), an additional indeterminate number of shares, options and rights that may be offered or issued pursuant to the Norwegian Cruise Line Holdings Ltd. Amended and Restated 2013 Performance Incentive Plan (the “Plan”) as a result of one or more adjustments under the Plan to prevent dilution resulting from one or more share splits, share dividends or similar transactions. |
| (2) | Pursuant to Securities Act Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the average of the high and low prices of the Ordinary Shares on June 27, 2016, as quoted on the NASDAQ Global Select Market. |
The Exhibit Index for this Registration Statement is at page 7 .
EXPLANATORY NOTE
This Registration Statement is filed by the Company to register additional securities issuable pursuant to the Plan. These securities are being registered in addition to the securities previously registered for issuance on the Company’s registration statement on Form S-8 (File No. 333-186184) concerning the Plan filed with the Securities and Exchange Commission (the “Commission”) on January 24, 2013 (the “2013 Registration Statement”). In accordance with Section E of the General Instructions to Form S-8, the contents of the 2013 Registration Statement are incorporated herein by reference, except to the extent supplemented, amended or superseded by the information set forth herein.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Securities Act Rule 428(b)(1).
| 2 |
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
| Item 3. | Incorporation of Certain Documents by Reference |
The following documents of the Company filed with the Commission are incorporated herein by reference:
| (a) | The Company’s Registration Statement on Form S-8, filed with the Commission on January 24, 2013 (Commission File No. 333-186184); |
| (b) | The Company’s Annual Report on Form 10-K for its fiscal year ended December 31, 2015, filed with the Commission on February 29, 2016 (Commission File No. 001-35784); |
| (b) | The Company’s Quarterly Report on Form 10-Q for its fiscal quarter ended March 31, 2016, filed with the Commission on May 10, 2016 (Commission File No. 001-35784); |
| (c) | The Company’s Current Reports on Form 8-K, filed with the Commission on February 18, 2016, March 11, 2016 (with respect to Item 5.02 only), March 31, 2016, May 24, 2016, June 8, 2016 and June 17, 2016 (each, Commission File No. 001-35784); and |
| (d) | The description of the Company’s Ordinary Shares contained in its Registration Statement on Form 8-A filed with the Commission on January 15, 2013 (Commission File No. 001-35784), and any other amendment or report filed for the purpose of updating such description. |
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement. Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this Registration Statement.
| Item 5. | Interests of Named Experts and Counsel |
Not applicable.
| 3 |
| Item 6. | Indemnification of Directors and Officers |
The Companies Act 1981 of Bermuda (the “Companies Act”) requires every officer, including directors, of a company in exercising powers and discharging duties, to act honestly in good faith with a view to the best interests of the company, and to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Companies Act provides that a Bermuda company may indemnify its directors in respect of any loss arising or liability attaching to them as a result of any negligence, default, breach of duty or breach of trust of which they may be guilty. However, the Companies Act further provides that any provision, whether in the bye-laws of a company or in any contract between the company and any officer or any person employed by the company as auditor, exempting such officer or person from, or indemnifying him against, any liability which by virtue of any rule of law would otherwise attach to him, in respect of any fraud or dishonesty of which he may be guilty in relation to the company shall be void.
The Registrant has adopted provisions in its bye-laws that, subject to certain exemptions and conditions, require the Registrant to indemnify to the full extent permitted by the Companies Act in the event each person who is involved in legal proceedings by reason of the fact that person is or was a director, officer or resident representative of the Registrant, or is or was serving at the request of the Registrant as a director, officer, resident representative, employee or agent of another company or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan against all expense, liability and loss (including attorneys’ fees, judgments, fines, amounts paid or to be paid in settlement, and excise taxes or penalties arising under the Employee Retirement Income Security Act of 1974) incurred and suffered by the person in connection therewith. The Registrant is also required under its bye-laws to advance to such persons expenses incurred in defending a proceeding to which indemnification might apply, provided if the Companies Act requires, the recipient provides an undertaking agreeing to repay all such advanced amounts if it is ultimately determined that he is not entitled to be indemnified. In addition, the Registrant’s bye-laws specifically provide that the indemnification rights granted thereunder are non-exclusive.
In addition, the Registrant has entered into separate contractual indemnification arrangements with its directors. These arrangements provide for indemnification and the advancement of expenses to these directors in circumstances and subject to limitations substantially similar to those described above. Section 98A of the Companies Act and the Registrant’s bye-laws permit the Registrant to purchase and maintain insurance for the benefit of any officer or director in respect of any loss or liability attaching to him in respect of any negligence, default, breach of duty or breach of trust, whether or not the Registrant may otherwise indemnify such officer or director. The Registrant expects to continue to maintain standard policies of insurance that provide coverage (i) to its directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act and (ii) to the Registrant with respect to indemnification payments that it may make to such directors and officers.
| Item 8. | Exhibits |
See the attached Exhibit Index at page 7 , which is incorporated herein by reference.
| 4 |
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Form S-8 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Miami, State of Florida, on June 30, 2016.
| NORWEGIAN CRUISE LINE HOLDINGS LTD. | ||
| By: | /s/Frank J. Del Rio | |
| Frank J. Del Rio | ||
| President and Chief Executive Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Frank J. Del Rio, Wendy A. Beck, Daniel S. Farkas and Angela Stark, and each of them, acting individually and without the other, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them individually, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/Frank J. Del Rio | Director, President and Chief | June 30, 2016 | ||
| Frank J. Del Rio | Executive Officer (Principal Executive Officer) | |||
| /s/Wendy A. Beck | Executive Vice President and Chief | June 30, 2016 | ||
| Wendy A. Beck | Financial Officer (Principal Financial Officer) | |||
| /s/Faye L. Ashby | Senior Vice President and Chief | June 30, 2016 | ||
| Faye L. Ashby | Accounting Officer (Principal Accounting Officer) |
| 5 |
| Signature | Title | Date | ||
| /s/Walter L. Revell | Director, Chairman of the Board | June 30, 2016 | ||
| Walter L. Revell | ||||
| /s/John W. Chidsey | Director | June 30, 2016 | ||
| John W. Chidsey | ||||
| /s/Steve Martinez | Director | June 30, 2016 | ||
| Steve Martinez | ||||
| /s/Adam M. Aron | Director | June 30, 2016 | ||
| Adam M. Aron | ||||
| /s/F. Robert Salerno | Director | June 30, 2016 | ||
| F. Robert Salerno | ||||
| /s/David M. Abrams | Director | June 30, 2016 | ||
| David M. Abrams | ||||
| /s/Russell W. Galbut | Director | June 30, 2016 | ||
| Russell W. Galbut | ||||
| /s/Chad A. Leat | Director | June 30, 2016 | ||
| Chad A. Leat | ||||
| /s/Daniel S. Farkas | Authorized Representative in the | June 30, 2016 | ||
| Daniel S. Farkas | United States |
| 6 |
EXHIBIT INDEX
| Exhibit | ||
| Number | Description of Exhibit | |
| 4. | Norwegian Cruise Line Holdings Ltd. Amended and Restated 2013 Performance Incentive Plan (incorporated herein by reference to Exhibit 10.1 to the Company’s Form 8-K filed on May 24, 2016 (File No. 001-35784)) | |
| 5. | Opinion of Cox Hallett Wilkinson Limited (opinion re legality) | |
| 23.1 | Consent of PricewaterhouseCoopers LLP | |
| 23.2 | Consent of Cox Hallett Wilkinson Limited (included in Exhibit 5) | |
| 24. | Power of Attorney (included in this Registration Statement under “Signatures”) |
| 7 |
EXHIBIT 5
CUMBERLAND HOUSE
9TH FLOOR
1 VICTORIA STREET
HAMILTON HM 11
BERMUDA
T: (441) 295-4630
F: (441) 292-7880
WWW.CHW.COM
30 June 2016
Norwegian Cruise Line Holdings Ltd.
Cumberland House, 9 th Floor
1 Victoria Street
Hamilton HM 11
Bermuda
Dear Sirs,
Re: Norwegian Cruise Line Holdings Ltd. (the “Company”)
We have acted as special legal counsel in Bermuda to the Company in connection with the preparation and filing with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to which the Company is registering, under the Securities Act of 1933 (as amended), up to 12,430,000 ordinary shares of par value US$0.001 each in the capital of the Company (the “Shares”) to be issued pursuant to the Norwegian Cruise Line Holdings Ltd. Amended and Restated Performance Incentive Plan (the “Plan”).
For the purposes of giving this opinion we have examined and relied upon the documents listed and (and defined) in the Schedule to this opinion and made such enquiries of Bermuda as we have deemed necessary in order to render the opinions set forth below.
Assumptions
We have assumed (without making any investigation thereof):
| (a) | the genuineness and authenticity of all copies (whether or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken; |
| (b) | that each of the documents that were received by electronic means is complete, intact and in conformity with the transmission as sent; |
| (c) | the accuracy and completeness of all factual representations (save for facts that are the subject of our opinions herein) made in the Registration Statement and other documents reviewed by us, and that such representations have not since such review been materially altered; and |
| (d) | that, save as referred to herein, there is no provision of the law of any jurisdiction, other than Bermuda, which would have any implication in relation to the opinions expressed herein. |
Reservations
| (a) | We do not purport to be qualified to pass upon, and express no opinion herein as to, the laws of any jurisdiction other than those of Bermuda. This opinion is limited to Bermuda and is given on the bases of the current law and practice in Bermuda. We are rendering this opinion as of the time that the Registration Statement becomes effective. |
| (b) | We express no opinion as to the validity, binding effect or enforceability of any provision incorporated into the Registration Statement by reference to a law other than that of Bermuda, or as to the availability in Bermuda of remedies which are available in other jurisdictions. |
| (c) | “Non-assessability” is not a legal concept under Bermuda law. Reference in this opinion to shares being “non-assessable” shall mean, in relation to fully-paid shares of the Company and subject to any contrary provision in any agreement in writing between the Company and the holder of shares, that no shareholder shall be (i) obliged to contribute further amounts to the capital of the Company, either in order to complete payment for their shares, to satisfy claims of creditors of the Company, or otherwise and (ii) bound by an alteration of the memorandum of association or bye-laws of the Company after the date on which he became a shareholder, if and so far as the alteration requires him to take, or subscribe for additional shares, or in any way increases his liability to contribute to the share capital of, or otherwise to pay money to, the Company. |
Opinion
We have made such examination of the laws of Bermuda as currently applied by the courts of Bermuda as in our judgement is necessary for the purpose of these opinions. Based upon and subject to the assumptions and qualifications set out in this opinion, we are of the opinion that the Shares will, upon payment for and delivery of the Shares as contemplated by the Registration Statement, the Plan and any relevant agreements duly authorised by and in accordance with the Plan, be duly authorised and validly issued, fully paid and non-assessable.
Disclosure
This opinion is addressed to you in connection with the preparation and filing of the Registration Statement with the Securities and Exchange Commission and the issue of the Shares as described in the Registration Statement and is not to be relied upon in respect of any other matter. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
This opinion is limited to the matters expressly set forth herein and no opinion is implied or may be inferred beyond the matters expressly set forth herein.
| Yours faithfully, | |
| /s/ Janice Gutteridge | |
| Janice Gutteridge | |
| duly authorised for and on behalf of | |
| COX HALLETT WILKINSON LIMITED |
Schedule
| 1. | Copies of the certificate of incorporation, memorandum of association and the bye-laws of the Company certified by the assistant secretary of the Company on 30 June 2016. |
| 2. | Copies of unanimous written resolutions of the board of directors of the Company effective on 7 January 2013 and 31 March 2016. |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the Norwegian Cruise Line Holdings Ltd. Amended and Restated 2013 Performance Incentive Plan of our report dated February 29, 2016, relating to the financial statements, financial statement schedules and the effectiveness of internal control over financial reporting, which appears in Norwegian Cruise Line Holdings Ltd.’s Annual Report on Form 10-K for the year ended December 31, 2015.
| /s/ PricewaterhouseCoopers LLP |
| Miami, Florida |
| June 30, 2016 |