EXHIBIT 10.1
ORIENT-EXPRESS HOTELS LTD.
2004 STOCK OPTION PLAN AS AMENDED EFFECTIVE JUNE 15, 2007
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1. The Plan
Orient-Express Hotels 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 1,000,000 Class A 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.
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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,
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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 may 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 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
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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 Sea Containers 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
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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 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
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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 9, 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.
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