Registration No. 333-_______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ORIENT-EXPRESS HOTELS LTD.
(Exact name of registrant as specified in its charter)
Bermuda
(State or other jurisdiction of 98-0223493
incorporation or organization) (I.R.S. Employer Identification No.)
22 Victoria Street
Hamilton HM 12, Bermuda
(Address of Principal Executive Offices)
Orient-Express Hotels Ltd.
2009 Share Award and Incentive Plan
(Full title of the plans)
John T. Landry, Jr.
Orient-Express Hotels Inc.
1114 Avenue of the Americas
New York, New York 10036-7703
(Name and address of agent for service)
(212) 302-5055
(Telephone number, including area code, of agent for service)
Copy to:
Vincent Monte-Sano
Carter Ledyard & Milburn LLP
2 Wall Street
New York, New York 10005-2072
(212) 732-3200
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed Amount of
Title of securities to be Amount to be offering maximum aggregate registration
registered registered(1) price per share offering price fee
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Class A common shares,
par value $.01 each 1,000,000 shares $ 9.97(3) $9,970,000(3) $556.33
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Class A common shares,
par value $.01 each 1,579,798 shares(2) -- (4) -- (4) -- (4)
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Preferred share purchase rights 2,579,798 rights(2) -- (5) -- (5) None
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(1) This registration statement shall also cover any additional class A
common shares and attached preferred share purchase rights ("rights")
which become issuable under the Orient-Express Hotels Ltd. 2009 Share
Award and Incentive Plan (the "2009 Plan") by reason of any stock
dividend, stock split, recapitalization or any other similar
transaction without receipt of consideration which results in an
increase in the number of outstanding class A common shares and
attached rights of the Registrant.
(2) The number of class A common shares and attached preferred share
purchase rights being registered under this registration statement with
respect to the 2009 Plan includes, in addition to the 1,000,000 class A
common shares and attached rights, (a) (i) 20,300 class A common shares
and attached rights remaining available for new awards under the
Registrant's 2000 Stock Option Plan (the "2000 Plan") that have been
transferred to the 2009 Plan, (ii) 68,548 class A common shares and
attached rights remaining available for new awards under the
Registrant's 2004 Stock Option Plan (the "2004 Plan") that have been
transferred to the 2009 Plan; and (iii) 2,130 class A common shares and
attached rights remaining available for new awards under the
Registrant's 2007 Performance Share Plan (the "2007 Plan") that have
been transferred to the 2009 Plan; and (b) (i) up to an aggregate of
1,488,820 class A common shares and attached rights subject to awards
outstanding under the 2000 Plan, the 2004 Plan or the 2007 Plan that
shall be transferred to the 2009 Plan and will be reserved for issuance
under the 2009 Plan if such awards are canceled, expired, forfeited,
settled in cash, settled by delivery of fewer class A common shares
than underlying the award or otherwise terminated without delivery of
class A common shares and attached rights or are withheld from an award
or surrendered in payment.
(3) Calculated pursuant to Rule 457 (c) and (h) upon the basis of the
average of the high and low prices ($10.18 and $9.76) of a class A
common share as reported for New York Stock Exchange composite
transactions on August 17, 2009.
(4) With respect to the 1,579,798 class A common shares and attached rights
described in note (2) being registered under the 2009 Plan, the
Registrant has previously paid the
filing fee for such shares as such shares were previously registered
pursuant to registration statements on Form S-8 (registration numbers:
333-58298, 333-129152, and 333-147448) ("Prior Registration
Statements"). The Registrant is filing a post-effective amendment to
each of the Prior Registration Statements to reflect the transfer of
such shares to this Registration Statement.
(5) Included in the offering price of the class A common 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.
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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. 1-16017):
o the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2008, as amended by Amendment No. 1 on Form 10-K/A, dated
April 27, 2009 and Amendment No. 2 on Form 10-K/A, dated June 29,
2009;
o the Registrant's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 2009 and June 30, 2009;
o the Registrant's Current Reports on Form 8-K dated on the front covers
April 28, April 30 and June 5, 2009;
o the description of the Registrant's class A common shares, which
appears in its Registration Statement on Form 8-A dated July 28, 2000,
Amendment No. 1 thereto dated April 23, 2007 and Amendment No. 2
thereto dated June 8, 2009, for the registration of the class A common
shares under Section 12(b) of the Securities Exchange Act of 1934 (the
"Exchange Act"); and
o the description of the preferred share purchase rights which appears
in the Registrant's Registration Statement on Form 8-A dated July 28,
2000, Amendment No. 1 thereto dated April 23, 2007 and Amendment No. 2
thereto dated June 8, 2009, for the registration of the rights under
Section 12(b) of the Exchange Act.
In addition, all documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, 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 applicable because the class A common shares and preferred share
purchase rights are registered under Section 12(b) of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Bye-Laws 122-125 of the Registrant provide as follows (references therein
to the Company are references to the Registrant and references to the Companies
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 Registrant):
"122. Subject to the proviso below, every Director, officer of the
Company and member of a committee constituted under Bye-Law 88 and any
Resident Representative shall be indemnified out of the funds of the
Company against all 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, committee member or Resident Representative and the indemnity
contained in this Bye-Law shall extend to any person acting as a Director,
officer, committee member or Resident Representative in the reasonable
belief that he has been so appointed or elected notwithstanding any defect
in such appointment or election; provided the indemnity contained in this
Bye-Law shall not extend to any matter which would render it void pursuant
to the Companies Acts. Nothing in this Bye-law or Bye-Laws 123, 124 and 125
below shall operate in favour of any person acting in the capacity of
auditor to the Company.
"123. Every Director, officer, member of a committee duly constituted
under Bye-Law 88 or Resident Representative of the Company shall be
indemnified out of the funds of the Company against all liabilities
incurred by him as such Director, officer, committee member or Resident
Representative in defending any proceedings, whether civil or criminal, in
which judgement is given in his favour, or in which he is acquitted, or in
connection with any application under the Companies Acts in which relief
from liability is granted to him by the court.
"124. To the extent that any Director, officer, member of a committee
duly constituted under Bye-Law 88 or Resident Representative 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.
"125. Expenses incurred in defending any 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 the indemnified party to repay such amount if it shall ultimately
be determined that the indemnified party is not entitled to be indemnified
pursuant to Bye-Laws 122 and 123 or otherwise."
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.
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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 (the "Securities Act"), unless the information
required to be included in such post-effective amendment is contained
in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act and
incorporated herein by reference;
(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, unless the information required to be
included in such post-effective amendment is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act and incorporated
herein by reference;
(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;
provided, however, that paragraphs (a)(i) and (a)(ii) above will not apply
for so long as this Registration Statement is on Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement;
(b) That for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement
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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.
(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.
(e) that for the purpose of determining liability of the Registrant
under the Securities Act to any purchaser in the initial distribution of
the securities, the undersigned Registrant undertakes that in a primary
offering of securities of the undersigned Registrant pursuant to this
Registration Statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned Registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant to
Rule 424;
(ii) any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used or
referred to by the undersigned Registrant;
(iii) the portion of any other free writing prospectus relating
to the offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the
undersigned Registrant; and
(iv) any other communication that is an offer in the offering
made by the undersigned Registrant to the purchaser.
(2) Insofar as indemnification for liabilities arising under the
Securities Act 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
Securities Act and will be governed by the final adjudication of such issue.
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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 undersigned, thereunto duly
authorized, in Hamilton, Bermuda on the 20th day of August, 2009.
ORIENT-EXPRESS HOTELS LTD.
By: /s/ Paul M. White
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Paul M. White
President and Chief Executive Officer
Each person whose signature appears below hereby constitutes J. Robert
Lovejoy, Paul M. White, Martin O'Grady 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 August 20, 2009.
Signature Title
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/s/ Paul M. White
----------------- President, Chief Executive Officer
Paul M. White and Director
(Principal Executive Officer)
/s/ Martin O'Grady
------------------ Chief Financial Officer
Martin O'Grady (Principal Financial and Accounting
Officer)
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Signature Title
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Director
/s/ John D. Campbell
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John D. Campbell
-------------------- Director
Mitchell C. Hochberg
/s/ James B. Hurlock Director
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James B. Hurlock
/s/ Prudence M. Leith Director
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Prudence M. Leith
/s/ J. Robert Lovejoy
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J. Robert Lovejoy Director and Authorized
Representative in the
United States
/s/ Georg R. Rafael Director
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Georg R. Rafael
----------------- Director
James B. Sherwood
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EXHIBIT INDEX
Exhibit
Number Description
4.1 - Schedule 1 to Bye-Laws of the Registrant.(1)
4.2 - Rights Agreement dated as of June 1, 2000, and amended and restated
as of April 12, 2007, between the Registrant and Computershare
Trust Company, N.A., as Rights Agent.(2)
4.3 - Amendment No. 1 dated December 10, 2007 to the amended and restated
Rights Agreement (Exhibit 4.2 above).(3)
5 - Opinion of Appleby.
23.1 - Consent of Deloitte LLP.
23.2 - Consent of PricewaterhouseCoopers.
23.3 - Consent of Appleby (included in Exhibit 5).
24 - Powers of Attorney (included in the signature page of
this Registration Statement).
99.1 - Indemnification Agreement between the Registrant and
J. Robert Lovejoy.
99.2 - Orient-Express Hotels Ltd. 2009 Share Award and Incentive Plan.(4)
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(1) Incorporated by reference to Exhibit 3.2 to the Registrant's Current
Report on Form 8-K dated June 15, 2007 on the front cover.
(2) Incorporated by reference to Exhibit 1 of Amendment No.1 to the
Registrant's Registration Statement on Form 8-A, filed with the U.S.
Securities and Exchange Commission on April 23, 2007.
(3) Incorporated by reference to Exhibit 1 of Amendment No. 2 to the
Registrant's Registration Statement on Form 8-A, filed with the U.S.
Securities and Exchange Commission on June 8, 2009.
(4) Incorporated by reference to Exhibit 10.1 to the Registrant's Current
Report on Form 8-K dated June 5, 2009 on the front cover.