Exhibit 10.38
AMENDMENT TO THE
ROYAL CARIBBEAN CRUISES
LTD.
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
WHEREAS , Royal Caribbean Cruises Ltd. (the
“Company”) currently maintains the Royal Caribbean
Cruises Ltd. Supplemental Executive Retirement Plan (the
“Plan”); and
WHEREAS , the Plan reserves to the Board of Directors of
Royal Caribbean Cruises Ltd. (the “Board”) the
authority to amend the Plan; and
WHEREAS , the Company has determined that it is
desirable to amend the Plan to (i) require that payment of
amounts deferred under the Plan attributable to services performed
on and after January 1, 2009, be made when the Participant
vests in those amounts; (ii) provide that payment of all
amounts accrued under the Plan prior to January 1, 2009, be
made on or before December 31, 2017; and (iii) comply
with the final regulations issued under Internal Revenue Code
Section 409A.
NOW, THEREFORE, IT IS
RESOLVED that, the Plan
is hereby revised, effective January 1, 2009, in the following
particulars:
1. The preface to the Plan is
amended to read as follows:
Royal Caribbean Cruises Ltd.
(“Company”) previously established the Royal Caribbean
Cruises Ltd. Supplemental Executive Retirement Plan
(“Plan”) for a select group of management or highly
compensated employees, effective January 1, 1994.
The purpose of this Plan is to
provide to the selected executives the benefit lost under the Royal
Caribbean Cruises Ltd. et al Retirement Plan due to the change in
section 401(a)(17) of the Internal Revenue Code of 1986, as amended
(“Code”) effective January 1, 1994. This Plan
document contains amendments adopted through December 31,
2008.
With respect to amounts credited
hereunder that are subject to Code Section 409A and any
regulations and other official guidance issued thereunder
(generally, amounts credited on and after January 1, 2005, and
the earnings thereon), applicable provisions of the Plan document
shall be interpreted to permit the deferral of compensation in
accordance with Code Section 409A, and any provision that
would conflict with such requirements shall not be valid or
enforceable. In addition, with respect to amounts credited
hereunder that are not subject to Section 409A
(“Grandfathered Funds”), it is intended that the rules
applicable under the Plan as of December 31, 2004, and not
Code Section 409A and related official guidance, shall apply
with respect to such Grandfathered Funds.
2. The following Section 1.11 is added
to the Plan and the remaining Sections and internal
cross-references are re-numbered accordingly:
1.11 Grandfathered Funds means amounts
credited under the Plan before January 1, 2005 (and the
earnings credited thereon before, on or after January 1, 2005)
for which (i) the Participant had a legally binding right as
of December 31, 2004, to be paid the amount, and
(ii) such right to the amount was earned and vested as of
December 31, 2004 and was credited to the Participant’s
Account hereunder.
3. The following
Section 1.16 is added to the Plan and the remaining Sections
and internal cross-references are re-numbered
accordingly:
1.16 Specified Employee means a
Participant who, as of the date of such Participant’s
Termination of Employment, is a key employee (as defined under Code
Section 416(i)) of the Company at any time during the twelve
(12) month period ending on the specified employee
identification date. For purposes of determining Specified
Employees, the specified employee identification date shall be
December 31 and the definition of “compensation”
shall be the amount to be reported as wages, tips, or other
compensation in Box 1 on the Participant’s Form W-2 for
income tax purposes for the Plan Year, including amounts that are
not currently includible in the Participant’s gross income by
reason of the application of Sections 125 or 132(f) of the Code,
and excluding any severance pay paid during such Plan Year. This
definition of compensation is not taken into account for purposes
of calculating benefits under the Plan, and is used solely for
purposes of identifying Specified Employees.
4. Section 1.17 is amended
to read as follows:
1.17 Termination of Employment means
the Participant’s separation from service with the Company or
o
