-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SPJCmsI5lfm4WVoUGwT+cMapF+CNXkXx75alhVOOUkPRCrvsmHEVTxOWmI8PNLhY wIoypSw2FXMGUX7s7IQaQg== 0000910662-05-000626.txt : 20051209 0000910662-05-000626.hdr.sgml : 20051209 20051209162641 ACCESSION NUMBER: 0000910662-05-000626 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20051209 DATE AS OF CHANGE: 20051209 EFFECTIVENESS DATE: 20051209 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SEA CONTAINERS LTD /NY/ CENTRAL INDEX KEY: 0000088095 STANDARD INDUSTRIAL CLASSIFICATION: WATER TRANSPORTATION [4400] IRS NUMBER: 980038412 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-130245 FILM NUMBER: 051255846 BUSINESS ADDRESS: STREET 1: 41 CEDAR AVE STREET 2: P O BOX HM 1179 CITY: HAMILTON HM EX BERMU STATE: D0 BUSINESS PHONE: 4412952244 MAIL ADDRESS: STREET 1: 41 CEDAR AVE STREET 2: PO BOX HM 1179 CITY: HAMILTON HM EX BERMU STATE: D0 FORMER COMPANY: FORMER CONFORMED NAME: SEA CONTAINERS ATLANTIC LTD DATE OF NAME CHANGE: 19810817 S-8 1 scls82004sop.txt 2004 STOCK OPTION PLAN Registration No. 333-_______ - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 ---------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------ S E A C O N T A I N E R S L T D. (Exact name of registrant as specified in its charter) Bermuda 98-0038412 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 22 Victoria Street Hamilton HM 12, Bermuda (Address of Principal Executive Offices) (Zip Code) Sea Containers Ltd. 2004 Stock Option Plan (Full title of the plan) John T. Landry, Jr. Sea Containers America Inc. 1114 Avenue of the Americas New York, New York 10036-7703 (Name and address of agent for service) (212) 302-5066 (Telephone number, including area code, of agent for service) ------------------ Copy to: Stephen V. Burger Carter Ledyard & Milburn LLP 2 Wall Street New York, New York 10005-2072 (212) 732-3200
CALCULATION OF REGISTRATION FEE =============================================================================================================== Proposed Proposed Title of securities Amount to be maximum offering maximum Amount of to be registered registered price per share aggregate offering registration fee price - --------------------------------------------------------------------------------------------------------------- Class A and class B common shares, par value $.01 each 500,000 shares $12.50(1) $6,250,000(1) $736 Preferred share purchase rights 500,000 rights -- (2) -- (2) None
(1) Calculated pursuant to Rule 457(h) upon the basis of the average of the high and low prices (both $12.50) of a class B common share as reported for New York Stock Exchange composite transactions on December 8, 2005. The proposed maximum offering price per share would have been less if it had been calculated upon the basis of the average of the high and low prices ($12.52 and $12.30) of a class A common share on that date. (2) Included in the offering price of the shares being registered hereby. Until the Distribution Date, as defined in the Rights Agreement providing for the preferred share purchase rights, such Rights will be attached to and transferable only with the class A and class B common shares and will be evidenced by the certificates evidencing the class A and class B common shares. - -------------------------------------------------------------------------------- This Registration Statement shall become effective immediately upon filing as provided in Rule 462(a) under the Securities Act of 1933. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The Registrant is incorporating by reference into this Registration Statement the following documents filed by it with the Securities and Exchange Commission (Commission File No. 1-7560): o the Registrant's Annual Report on Form 10-K and Form 10-K/A for the fiscal year ended December 31, 2004; o the Registrant's Quarterly Reports on Form 10-Q for the quarterly periods ending March 31, 2005, June 30, 2005 and September 30, 2005; o the Registrant's Current Reports on Form 8-K dated on the front covers January 1, 2005, March 4, 2005, May 26, 2005, November 3, 2005, November 17, 2005 and December 1, 2005; o the description of the Registrant's class A common shares which appears in Amendment No. 1, dated June 11, 1998, to its Registration Statement on Form 8-A for the registration of the class A common shares under Section 12(b) of the Securities Exchange Act of 1934; o the description of the Registrant's class B common shares which appears in Amendment No. 1, dated June 9, 1998, to its Registration Statement on Form 8-A for the registration of the class B common shares under Section 12(b) of the Securities Exchange Act of 1934; and o the description of the preferred share purchase rights which appears in Amendment No. 3, dated June 5, 1998, to the Registrant's Registration Statement on Form 8-A for the registration of the rights under Section 12(b) of the Securities Exchange Act of 1934. In addition, all documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold, or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in and made a part of this Registration Statement from the date of filing of such documents. Item 4. Description of Securities. Not required. The class A and class B common shares and the preferred share purchase rights are registered under Section 12(b) of the Exchange Act. Item 5. Interests of Named Experts and Counsel. II-1 Carter Ledyard & Milburn LLP, New York, New York, has passed upon certain legal matters for the Registrant with respect to this Registration Statement. Robert M. Riggs, who is senior counsel at Carter Ledyard & Milburn LLP, having recently retired as a partner in that firm, is a director of the Registrant and the beneficial owner of 16,106 class A common shares, plus 8,000 shares issuable upon exercise of stock options. Item 6. Indemnification of Directors and Officers. Bye-Law 119 of the Registrant provides as follows (references therein to the Company are references to the Registrant and references to the Act mean Bermuda's Companies Act 1981 and such other statutory corporate enactments in Bermuda as are from time to time in force concerning companies insofar as the same applies to the Company): "119. (a) Subject to the proviso below, every Director and other officer of the Company and every member of a committee duly constituted under Bye-Law 86 shall be indemnified out of the funds of the Company against all civil liabilities, loss, damage or expense (including but not limited to liabilities under contract, tort and statute or any applicable foreign law or regulation and all reasonable legal and other costs and expenses properly payable) incurred or suffered by him as such Director, officer or committee member and the indemnity contained in this Bye-Law shall extend to any person acting as a Director, officer or committee member in the reasonable belief that he has been so appointed or elected notwithstanding any defect in such appointment or election; provided that the indemnity contained in this Bye-Law shall not extend to any matter which would render it void pursuant to the Act. "(b) Every Director and other officer of the Company and every member of a committee duly constituted under Bye-Law 86 shall be indemnified out of the funds of the Company against all liabilities incurred by him as such Director, officer or committee member in defending any proceedings, whether civil or criminal, in which judgment is given in his favour, or in which he is acquitted, or in connection with any application under the Act in which relief from liability is granted to him by the Court. "(c) Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit or proceeding as authorized by the Directors in the specific case upon receipt of an undertaking by or on behalf of a Director or other officer of the Company or a member of a committee duly constituted under Bye-Law 86 to repay such amount unless it shall be ultimately determined that such Director, officer or committee member is entitled to be indemnified by the Company pursuant to these Bye-Laws or otherwise. "(d) To the extent that any Director, officer or member of a committee duly constituted under Bye-Law 86 is entitled to claim an indemnity pursuant to these Bye-Laws in respect of amounts paid or discharged by him, the relative indemnity shall take effect as an obligation of the Company to reimburse the person making such payment or effecting such discharge." II-2 Reference is made to the Indemnification Agreement (Exhibit 99.1 to this Registration Statement) concerning the indemnification by the Registrant of its authorized representative in the United States for purposes of this Registration Statement. The Registrant also maintains directors' and officers' liability and corporate reimbursement insurance. Such insurance, subject to annual renewal and certain rights of the insurer to terminate, provides an aggregate maximum of $40,000,000 of coverage to directors and officers of the Registrant and its subsidiaries, against claims made during the policy period. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. The index to exhibits appears on the page immediately following the signature pages of this Registration Statement. Item 9. Undertakings. (1) The undersigned Registrant hereby undertakes: (a) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; provided, however, that, paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; (b) that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; II-3 (c) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; (d) that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (e) that, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities pursuant to this registration statement, regardless of the underwriting method used, if the securities are offered or sold to such purchaser by means of any communication that is an offer in the offering made by the undersigned Registrant to the purchaser, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser. (2) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 registration statement to be signed on its behalf by the under-signed, thereunto duly authorized, in Hamilton, Bermuda on the 9th day of December, 2005. SEA CONTAINERS LTD. By: /s/ Ian C. Durant ----------------- Ian C. Durant Senior Vice President- Finance, Chief Financial Officer and Interim Chief Executive Officer Each person whose signature appears below hereby constitutes James B. Sherwood, Robert M. Riggs, Ian C. Durant and Edwin S. Hetherington, and each of them singly, his true and lawful attorneys-in-fact with full power to sign on behalf of such person, in the capacities indicated below, any and all amendments to this registration statement, and generally to do all such things in the name and on behalf of such person, in the capacities indicated below, to enable the Registrant to comply with the provisions of the Securities Act of 1933 and all requirements of the Securities and Exchange Commission thereunder, hereby ratifying and confirming the signature of such person as it may be signed by said attorneys-in-fact, or any of them, to any and all amendments to this registration statement. Pursuant to the requirements of the Securities Act of 1933, this registration statement and the above power of attorney have been signed below by the following persons in the capacities indicated on December 9, 2005. Signature Title --------- ----- /s/ James B. Sherwood --------------------- James B. Sherwood President and Director (Co-Principal Executive Officer) /s/ Ian C. Durant ----------------- Ian C. Durant Interim Chief Executive Officer, Senior Vice President - Finance and Chief Financial Officer (Co-Principal Executive Officer, Principal Financial and Accounting Officer) II-5 Signature Title --------- ----- /s/ John D. Campbell -------------------- John D. Campbell Director /s/ W. Murray Grindrod ---------------------- W. Murray Grindrod Director /s/ Robert M. Riggs ------------------- Robert M. Riggs Director and Authorized Representative in the United States /s/ Charles N.C. Sherwood ------------------------- Charles N.C. Sherwood Director /s/ Michael J.L. Stracey ------------------------ Michael J.L. Stracey Director II-6 EXHIBIT INDEX Exhibit Description Number - ------- ----------------------------------------------------------------- 4.1 Schedule 1 and Schedule 2 to the bye-laws of the Registrant, as amended through June 6, 2001.(1) 4.2 Rights Agreement between the Registrant and BankBoston, N.A., as Rights Agent, dated as of May 9, 1988, and amended and restated as of June 1, 1998.(2) 5 Opinion of Appleby Spurling Hunter 23.1 Consent of Deloitte & Touche LLP 23.2 Consent of Deloitte & Touche LLP 23.3 Consent of Appleby Spurling Hunter (including in Exhibit 5) 24 Powers of Attorney (included in the signature page of this Registration Statement) 99.1 Indemnification Agreement between the Registrant and Robert M. Riggs 99.2 Sea Containers Ltd. 2004 Stock Option Plan. - ------------------- (1) Incorporated by reference to Exhibit 3(b) to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2003 (Commission File No. 1-7560). (2) Incorporated by reference to Exhibit 6 to Amendment No. 3, dated June 5, 1998, to the Registrant's Registration Statement on Form 8-A for the registration of the Registrant's Preferred Share Purchase Rights under Section 12(b) of the Securities Exchange Act of 1934 (Commission File No. 1-7560). II-7 EX-5 2 ex5.txt OPINION OF APPLEBY SPURLING HUNTER EXHIBIT 5 --------- Appleby Spurling Hunter Barristers & Attorneys 22 Victoria Street Hamilton HM 12, Bermuda Telephone: 441 295 2244 Fax: 441 292 8666/441 295 5328 December 9, 2005 Securities and Exchange Commission 100 F Street, N.E. Washington, D.C. 20549 Ladies and Gentlemen: Sea Containers Ltd. ------------------- We have acted as Bermuda counsel for Sea Containers Ltd., a Bermuda company (the "Company"), in connection with its 2004 Stock Option Plan and subsidiary 2004 United Kingdom Stock Option Plan (collectively, the "Plan"). The Plan provides for the sale upon the exercise of option of up to 500,000 shares (the "Additional Shares") of the Company's class A common shares, par value $0.01 each, and class B common shares, par value $0.01 each, and up to and an additional 500,000 preferred share purchase rights (the "Additional Rights"). The Additional Shares may be authorised but unissued shares. Each Additional Right will be issued in connection with the issuance of one of the Additional Shares and prior to the Distribution Date (as defined in the rights agreement providing for the preferred share purchase rights), will be transferable with and only with, and will be evidenced by the certificate evidencing, such Additional Share. We have examined the originals, or copies certified or otherwise identified to our satisfaction, of such corporate records and such other documents as we have deemed relevant as a basis for our opinion hereinafter expressed. Based on the foregoing, we are of the opinion that up to 500,000 previously unissued Additional Shares and Additional Rights, when they are paid for in accordance with the terms of the Plan and the options granted thereunder, and when certificates for the Additional Shares and Additional Rights are duly executed under the common seal of the Company, will be legally issued, and the Additional Shares will be fully-paid and non-assessable. The foregoing reference to the Additional 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 Additional Shares, that no shareholder shall be obliged to contribute further amounts to the capital of the Company, either in order to complete payment for their Additional Shares, to satisfy claims of creditors of the Company, or otherwise; and no shareholder shall be 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 of the Company, or in any way increases his liability to contribute to the share capital of, or otherwise to pay money to the Company. In rendering this opinion, we do not express any opinion as to the laws of any jurisdiction other than the laws of Bermuda. We hereby consent to the filing of this opinion as an exhibit to the Company's Form S-8 Registration Statement for the Additional Shares and Additional Rights. Yours faithfully APPLEBY SPURLING HUNTER /s/Appleby Spurling Hunter EX-23.1 3 ex23_1.txt CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.1 ------------ CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 30, 2005, relating to the financial statements and financial statement schedule of Sea Containers Ltd. and to management's report on the effectiveness of internal control over financial reporting, appearing in the Annual Report on Form 10-K of Sea Containers Ltd. and subsidiaries for the year ended December 31, 2004. /s/Deloitte & Touche LLP Deloitte & Touche LLP New York, New York December 7, 2005 EX-23.2 4 ex23_2.txt CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.2 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report date May 10, 2005 related to the combined and consolidated financial statements of GE SeaCo SRL and subsidiaries and GE SeaCo America LLC, appearing in the Annual Report on Form 10-K/A of Sea Containers Ltd. and subsidiaries for the year ended December 31, 2004. /s/Deloitte & Touche LLP Deloitte & Touche LLP New York, New York December 7, 2005 EX-99.1 5 ex99_1.txt INDEMNIFICATION AGREEMENT EXHIBIT 99.1 ------------ Sea Containers Ltd. 22 Victoria Street Hamilton, Bermuda HM 12 December 9, 2005 Mr. Robert M. Riggs 2 Wall Street New York, New York 10005-2072 Dear Sir: Sea Containers Ltd., a Bermuda company ("Sea Containers"), proposes to file with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations adopted by the Commission thereunder, a Registration Statement on Form S-8 relating to the proposed offer and sale of up to 500,000 class A and class B common shares of Sea Containers (the "Shares") and 500,000 attached preferred share purchase rights (the "Rights"). The Shares and Rights are issuable from time to time upon the exercise of options granted and to be granted under the Sea Containers Ltd. 2004 Stock Option Plan. Such registration statement at the time it becomes effective, including all exhibits and documents incorporated therein by reference, is hereinafter referred to as the "Registration Statement." The term "Prospectus" as used herein means a prospectus relating to the Plan and meeting the requirements of Part I of Form S-8. Under Section 6(a) of the Securities Act, the Registration Statement is required to be signed by, among other persons, Sea Containers' duly authorized representative in the United States. Sea Containers has requested that you act as such duly authorized representative and that you sign the Registration Statement in such capacity, and you have agreed to so act and to sign the Registration Statement in such capacity on condition that Sea Containers furnish to you the indemnification provided for in this Agreement. Accordingly, in consideration of the foregoing, and in order to induce you to act as Sea Containers' duly authorized representative in the United States and to sign the Registration Statement in such capacity, Sea Containers hereby agrees to indemnify and hold you harmless against and from any and all losses, claims, damages and liabilities, joint or several (including, subject to the provisions of the next paragraph below, any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted), to which you or any such controlling person may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended, or other United States Federal or state statutory law or regulation, or under common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading. If you propose to assert the right to be indemnified under this Agreement, you will, promptly after receipt of notice of commencement of any action, suit or proceeding against you in respect of which a claim for indemnification is to be made against Sea Containers hereunder, notify Sea Containers of the commencement of such action, suit or proceeding, enclosing a copy of all papers served, but the omission so to notify Sea Containers of such action, suit or proceeding shall not relieve it from any liability which it may have to you otherwise than under this Agreement. In case any such action, suit or proceeding shall be brought against you and you shall notify Sea Containers of the commencement thereof, Sea Containers shall be entitled to participate in, and, to the extent that it shall wish, to assume the defense thereof, with counsel satisfactory to you, and after notice from Sea Containers to you of its election so to assume the defense thereof, Sea Containers shall not be liable to you for any legal or other expenses, other than reasonable costs of investigation subsequently incurred by you in connection with the defense thereof. You shall have the right to employ counsel in any such action, but the fees and expenses of such counsel shall be at your expense unless (i) your employment of counsel has been authorized by Sea Containers, or (ii) you shall have reasonably concluded that there may be a conflict of interest between Sea Containers and you in the conduct of the defense of such action (in which case Sea Containers shall not have the right to direct the defense of such action on your behalf), or (iii) Sea Containers shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel shall be at the expense of Sea Containers. Sea Containers shall not be liable for the settlement of any action or claim effected without its consent. This Agreement has been and is made solely for the benefit of you and your legal representatives, and no other person, partnership, association or corporation shall acquire or have any right under or by virtue of this Agreement. All notices and communications hereunder shall be in writing and mailed or delivered, or by telephone if subsequently confirmed in writing, to you at 2 Wall Street, New York, New York 10005-2072 (fax 212-732-3232) and to Sea Containers at 22 Victoria Street, Hamilton HM 12, Bermuda, Attention: Secretary, with a copy to Sea Containers Services Ltd., 20 Upper Ground, London SE1 9PF England (fax 011-44-207-805-5200). Please confirm that the foregoing correctly sets forth the agreement between us. Very truly yours, SEA CONTAINERS LTD. By: /s/ Edwin S. Hetherington ------------------------- Edwin S. Hetherington Vice President, General Counsel and Secretary CONFIRMED: /s/ Robert M. Riggs ------------------- Robert M. Riggs EX-99.2 6 ex99_2.txt SCL 2004 STOCK OPTION PLAN EXHIBIT 99.2 ------------ SEA CONTAINERS LTD. 2004 STOCK OPTION PLAN ---------------------- 1. The Plan -------- Sea Containers Ltd. (the "Company") may grant, in the manner and upon the terms and conditions set forth herein, options to purchase not in excess of an aggregate of 500,000 class A or class B common shares of the Company (adjusted, if necessary, in accordance with Section 12) to eligible directors, officers and employees of the Company and its subsidiaries (as determined in accordance with Section 3). Shares may be either authorized but unissued shares or acquired shares. 2. Administration of the Plan -------------------------- The Plan shall be administered, and the options hereunder shall be granted, by the Board of Directors of the Company or a committee thereof from time to time constituted pursuant to the Bye-Laws of the Company. Any decision of the Board or the committee shall be final and conclusive in all matters relating to the Plan. The Board or the committee may make or vary regulations for the administration and operation of the Plan not inconsistent with the provisions hereof. The Board or the committee may act only by a majority of its members in office, except that the members may authorize any one or more of their number or the Secretary of the Company to execute and deliver documents on their behalf. No member of the Board or the committee shall be liable for anything done or omitted to be done by him or by any other member in connection with the Plan, except for his own willful misconduct or as expressly provided by statute. The Board or the committee shall have authority to (a) adopt a subsidiary plan (the "U.K. Plan") under the Plan which provides for the grant of options on shares reserved under the Plan to eligible United Kingdom resident directors, officers and employees and complies with the requirements imposed by the United Kingdom Board of Inland Revenue, and (b) prescribe the form of options granted under the Plan; provided, however, in each case that the terms and conditions of the U.K. Plan and the form of the option are not more favorable to optionees than the terms and conditions of the Plan. Any option granted under the U.K. Plan shall be deemed to be outstanding also under the Plan. The Board or the committee is authorized, in its discretion exercised at the time of grant, to designate options as "United States incentive stock options" within the meaning of Section 422 of the United States Internal Revenue Code. 3. To Whom Options May Be Granted ------------------------------ Options may be granted to those directors, officers and employees of the Company or any subsidiary who, in the opinion of the Board or the committee, have contributed significantly to the growth and progress of the Company or any subsidiary or to persons who, in the opinion of the Board or the committee, hold promise of contributing to the growth and progress of the Company or any subsidiary and who can be attracted to directorship, officership or employment through the grant of options under the Plan. The Board or the committee is hereby given the authority to determine which of the eligible directors, officers and employees are to be granted options and the number of shares to be allocated to each. No United States incentive stock option shall be granted to a person who is not an employee or (except as provided in Sections 4 and 7) to an employee who owns (or would be regarded as owning) shares possessing more than ten percent of the total combined voting power of all classes of shares of the Company or its subsidiaries at the time the option is granted. In addition, in the case of United States incentive stock options, the aggregate fair market value (determined at the time the option is granted) of the shares with respect to which incentive stock options are exercisable for the first time by an employee during any calendar year (under all United States incentive stock option plans of the Company and its subsidiaries) shall not exceed U.S.$100,000. The term "subsidiary" means any corporation in an unbroken chain of corporations beginning with the Company, each of which owns at the time such option is granted (except in the case of the last such corporation in the chain) shares possessing 50 percent or more of the total combined voting power of all classes of shares in one of the other corporations in such chain. 4. Option Price ------------ The option price per share shall be not less than the fair market value of the shares subject to the option at the time it is granted, as determined in good faith by the Board or the committee. If a United States incentive stock option is granted to an employee who at the time the option is granted owns (or would be regarded as owning) shares possessing more than ten percent of the total combined voting power of all classes of shares of the Company or its subsidiaries, the option price shall be at least 110 percent of the fair market value of the shares subject to the option at the time it is granted. The option price shall be subject to adjustment in accordance with Section 12. 5. Circumstances Under Which Options May Be Granted ------------------------------------------------ Options may be granted at any time and from time to time on or after the date on which the Plan is adopted by the Board of Directors of the Company and before the expiration of ten years therefrom. If prior to the expiration of ten years from the date on which the Plan is adopted, an option shall expire or otherwise terminate without having been exercised in full, the unexercised shares shall thereupon become available for the granting of options to other eligible directors, officers and employees. No option shall be granted unless, at the time such option is granted, the Company shall have available at least the number of shares covered by such option and by all other options then outstanding under the Plan. 6. Options Not Assignable ---------------------- Every option granted under the Plan shall provide that it is not transferable by the person to whom it is granted, otherwise than by will or the laws of descent and distribution, and that it is exercisable, during his lifetime, only by him. 7. Manner of Exercise of Options ----------------------------- Any person to whom an option has been granted may exercise the same, subject to the provisions of Section 10, at any time and from time to time before the expiration of not more than ten years (or, in the case of any United States incentive stock option granted to an employee subject to the second sentence of Section 4, not more than five years) from the date the option was granted. Any such exercise shall be effected by giving written notice to the Company, in a form satisfactory to the Board or the committee, specifying the number of shares with respect to which the option is being exercised. Any person to whom an option has been granted under the U.K. Plan may exercise the same under the Plan, subject to all the provisions hereof and provided that in the written notice of exercise the person states that he is exercising under the Plan and not under the U.K. Plan. 8. Manner of Payment on Exercise of Options ---------------------------------------- At the time of giving such notice, such person shall pay or cause to be paid to the Company the full option price of the shares as to which the option is exercised. As soon as practicable thereafter, the Company shall cause a certificate or certificates for such shares to be registered in the name of such person, in such denominations as such person may direct, and shall deliver said certificate or certificates to or upon the order of such person. Notwithstanding the foregoing, on concurrence by the Board or the committee (which concurrence may be granted or withheld in its sole discretion) the person exercising an option may elect to defer, for a term not to exceed five years from the date of exercise, payment of all or a portion of the option price of the shares as to which the option is exercised, provided, however that: (a) in the case of an optionee who is a "United States person" within the meaning of Regulation X of the Board of Governors of the Federal Reserve System of the United States of America, the portion of the option price so deferred for future payment shall not exceed the "good faith loan value" of the shares, within the meaning of the applicable provisions of Regulation G of such Board and as may be in effect on the date of exercise if such deferral is then subject to such regulation; (b) the shares for which the option is exercised shall be issued to and registered in the name of the person exercising the option but shall be endorsed by the person in blank (either on the certificate or on a separate stock power) and held by the Company as collateral for the deferred portion of the option price; (c) the person exercising the option shall execute a promissory note or other instrument of like effect in favor of the Company in a principal amount equal to the deferred portion of the option price, which instrument shall provide for the payment of interest at the rate, determined by the Board or the committee, of at least four percent per annum, payable quarterly; (d) the person exercising the option shall have the right at any time and from time to time to withdraw part or all of the option shares from the collateral so held by the Company upon payment of a corresponding portion of the deferred option price, together with any accrued interest thereon, and that upon such payment the person exercising the option shall be discharged under the promissory note or other instrument, pro tanto, and shall then be free to dispose of the shares in any manner he may deem appropriate, subject to the relevant conditions and restrictions of the Plan; and (e) the deferred payment arrangement shall be subject to such further terms and conditions as ma y be prescribed by the Board or the committee upon the exercise of options. The person exercising an option shall be entitled, from the date of exercise, to all the rights of a shareholder as to the shares covered by the exercise, including the right to vote the shares and to receive and retain all dividends paid thereon. 9. Exercise After Death of Person to Whom Granted ---------------------------------------------- In the event the person to whom an option is granted shall die owning but without having fully exercised the option, his estate or any person who acquired the right to exercise the option by bequest or inheritance or by reason of the death of the optionee may, subject to the provisions of Section 10 (except subsection 10(b) and (d)), exercise the option at any time and from time to time before the expiration of the period of one year after the date of death, notwithstanding that the exercise may occur less than three years or more than ten years after the date of grant thereof, but only if the person so exercising the option shall have furnished the Company with evidence satisfactory to the Company of the person's right to exercise the option and of payment or provision for the payment of any estate, transfer, inheritance or death taxes payable with respect to the option or the shares to which it relates. Any such exercise shall be effected in the manner described in Sections 7 and 8. Any such exercise, however, shall not be permitted in the case of a United States incentive stock option after the expiration of ten years from the date the option was granted. 10. Circumstances Under Which Options May Not Be Exercised ------------------------------------------------------ Every option under the Plan shall provide that it may not be exercised (except as may be otherwise provided in Sections 9 and 11): (a) until the shares reserved for issuance upon the exercise thereof have been listed upon any national securities exchange in the United States of America on which the Company's Class A or B common shares are then listed; (b) until the expiration of a period of three years from the date the option was granted, and in any event not after (i) the expiration of a period of three months from the date a person ceases to be a director, officer or employee of the Company or a subsidiary thereof under circumstances not involving misconduct, impropriety or inefficiency on his part or (ii) the termination of the directorship, officership or employment of a person by the Company or a subsidiary thereof or the shareholders for reasons involving misconduct, impropriety or inefficiency on his part; provided, however, that a person ceasing to be a director, officer or employee of the Company or a subsidiary thereof on account of (i) retirement at or after the normal retirement date, (ii) early retirement not earlier than five years before the normal retirement date, (iii) injury or disability, (iv) dismissal for redundancy or (v) on concurrence of the Board or the committee (which concurrence may be granted or withheld in its sole discretion), the sale or other disposition of the subsidiary for which the person acts as director or officer or which employs the employee or the operating division of the Company or a subsidiary for which the employee performs his employment, shall be entitled to exercise an option at any time prior to the expiration of a period of three months from the date he ceases to be a director, officer or employee of the Company or a subsidiary thereof notwithstanding that such exercise is made prior to the expiration of a period of three years from the date such option was granted (and for purposes of this Section 10 hereof, the directorship, officership or employment of any person with the Company or a subsidiary thereof shall not be deemed to have ceased or terminated so long as such person shall continuously since the date of grant of the option be a director, officer or employee either of the Company or a subsidiary thereof or of Orient-Express Hotels Ltd. or a subsidiary thereof); (c) unless the Board or the committee shall be satisfied that the issuance of shares upon exercise will be in compliance with all relevant rules and regulations of the United States Securities and Exchange Commission; or (d) after the expiration of ten years from the date the option is granted. 11. Change in Control ----------------- For purposes of this Section 11, "Change in Control" means any of the following events: (a) any "person" (as that term is defined for the purposes of Section 13(d) or 14(d) of the U.S. Securities Exchange Act of 1934), other than James B. Sherwood or a group including James B. Sherwood or any subsidiary of the Company, shall directly or indirectly acquire more than 40% of the voting shares of the Company then outstanding and then entitled to vote generally in the election of directors of the Company; or (b) individuals who, on the date of adoption of the Plan, constitute the Company's Board of Directors (or the successors of such individuals nominated by such Board of Directors or a committee thereof on which such individuals or their successors constitute a majority) shall cease to constitute a majority of the Company's Board of Directors; or (c) the Company amalgamates, merges or consolidates with or into any other corporation, other than a corporation which directly, or indirectly through one or more intermediaries, is controlled by James B. Sherwood or a group including James B. Sherwood, without the approval of its Board of Directors constituted as provided in clause (b) above; or d) the Company sells, leases, exchanges or otherwise disposes of all or substantially all of its assets and business without the approval of its Board of Directors constituted as provided in clause (b) above. In the event of a Change in Control, and notwithstanding anything to the contrary in Section 3, any outstanding option granted under the Plan which an optionee shall not then have been entitled to exercise shall become exercisable immediately prior to or concurrently with the occurrence of the Change in Control and the optionee shall have the right to exercise all such options. Notwithstanding anything in the Plan to the contrary, in the event of exercise of an option following a Change in Control, the optionee may elect, in the written notice provided for in Sections 7 and 8, (i) to pay or cause to be paid to the Company the full option price of the shares as to which the option is exercised, or (ii) to surrender to the Company all or any part of an option and receive from the Company upon such surrender an amount in cash equal to the excess, if any, of the determined value of the shares subject to the option or portion thereof so surrendered over the aggregate exercise price of such shares as set forth in the applicable option grant letter. The term "determined value" as used herein means the higher of (A) the highest sale price per Class A or B common share of the Company on the New York Stock Exchange (or, if any of such shares are not listed on that exchange at that time, then the highest sale price of the shares on the principal stock exchange on which such shares are listed, or if such shares are not listed, then the over-the-counter market) during the 12 months immediately preceding the date of the Change in Control, or (B) the highest price per share actually paid in connection with any Change in Control (including, without limitation, prices paid in any subsequent amalgamation, merger or combination with any entity that acquires control of the Company), in either case multiplied by the number of shares subject to the option or portion thereof so surrendered. In the event of a surrender of all or a portion of an option pursuant to this Section, the number of shares as to which the option was surrendered shall not again become available for use under the Plan. The obligations of the Company under the Plan shall be binding upon any successor company, corporation or other organization resulting from any amalgamation, merger, consolidation or other reorganization of the Company, or upon any successor company, corporation or organization succeeding to all or substantially all of the assets and business of the Company, in any such case which would constitute a Change in Control. The Company agrees that it will make appropriate provisions for the preservation of all optionees' rights under the Plan in any agreement or plan that it may enter into or adopt to effect any such amalgamation, merger, consolidation, reorganization or transfer of assets constituting a Change in Control. 12. Adjustment of Number or Kind of Shares -------------------------------------- If the Company shall effect one or more share splits, share dividends, combinations of shares, exchanges of shares or similar capital adjustments, the Board or the committee shall appropriately adjust the aggregate number and kind of shares with respect to which options have been granted or may be granted under the Plan. Every option granted under the Plan shall provide that, in the event of any such capital adjustments, the number and kind of the shares with respect to which it may be exercised, and the option price, shall be appropriately adjusted. 13. Amendment --------- The Plan may be amended from time to time by the Board of Directors of the Company. No amendment shall alter or impair any of the rights or obligations of any person, without his consent, under any option theretofore granted under the Plan. 14. Termination ----------- The Plan shall terminate upon the first of the following dates or events to occur: (a) if the Company is a participant in any corporate amalgamation, merger, consolidation or other transaction and no provision is made at the time of the transaction to continue the Plan, except as provided in Section 11; (b) resolution of the Board of Directors of the Company terminating the Plan; or (c) on February 8, 2014. In the event of termination of the Plan in any of the ways provided hereinabove, the provisions of the Plan shall continue in full force and effect as regards any options granted prior to such termination. 15. Effect of Options Upon Employment --------------------------------- Nothing in the Plan shall be construed as giving any person acting as a director or officer of or employed by the Company or any subsidiary thereof the right to be retained in such directorship, officership or employment. The Company and any subsidiary thereof and the shareholders shall have the right to dismiss any director, officer or employee at any time with or without cause and without liability for the effect which such dismissal might have upon him as a participant under the Plan, and under no circumstances shall a person ceasing to be a director, officer or employee by reason of dismissal or otherwise be entitled to or claim against the Company or any subsidiary thereof any compensation for or in respect of any consequent reduction or loss of his rights or benefits (actual or prospective) under any option held by him in connection with the Plan. 16. Construction ------------ In all respects the Plan shall be governed by, and be construed in accordance with, the laws of the Islands of Bermuda. * * * * * -----END PRIVACY-ENHANCED MESSAGE-----