Exhibit 10.36
AMENDMENT TO THE
ROYAL CARIBBEAN CRUISES LTD. ET
AL NONQUALIFIED DEFERRED
COMPENSATION PLAN
WHEREAS , Royal Caribbean Cruises Ltd. (the
“Company”) currently maintains the Royal Caribbean
Cruises Ltd. et al Nonqualified Deferred Compensation 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) prohibit new Participants
in the Plan on and after January 1, 2009, (ii) provide
that payment of all amounts deferred 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. Article 1 is amended to read
as follows:
ARTICLE 1. PURPOSE
Royal Caribbean Cruises Ltd. has
established The Royal Caribbean Cruises Ltd. et al. Nonqualified
401(k) Plan, effective January 1, 1998. This amended Plan
document contains amendments adopted through December 31,
2008. The Royal Caribbean Cruises Ltd. et al. Nonqualified 401(k)
Plan is a nonqualified deferred compensation plan for a select
group of management or highly compensated employees of Royal
Caribbean Cruises Ltd. and its participating subsidiaries and
affiliated companies as a means of sheltering a portion of an
eligible individual’s income from current taxation while
accumulating resources for future investments. Effective on and
after September 14, 2007, the Plan shall no longer be known as
the Royal Caribbean Cruises Ltd. et al Nonqualified 401(k) Plan and
shall instead be known as the Royal Caribbean Cruises Ltd. et al
Nonqualified Deferred Compensation Plan.
With respect to amounts deferred
hereunder that are subject to Code Section 409A and any
regulations and other official guidance issued thereunder
(generally, amounts deferred 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 deferred
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. Section 2.9 is amended to read as
follows:
2.9 Effective Date means, with respect
to the original Plan document, January 1, 1998. The effective
date of this amendment and restatement is January 1,
2009.
3. The following
Section 2.16 is added to the Plan and the remaining Sections
and internal cross-references are re-numbered
accordingly:
2.16 Grandfathered Funds means amounts
deferred 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.
4. The following
Section 2.21 is added to the Plan and the remaining Sections
and internal cross-references are re-numbered
accordingly:
2.21 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. .
5. Section 2.22 is amended
to read as follows:
2.22 Termination of Employment means a
Participant’s termination of employment with his or her
Employer and any Affiliated Company, or other separation from
service as described in Code Section 409A and the regulations
thereunder.
6. Section 3.1 is amended to
read as follows:
3.1 Determination of Eligible Employee
Status: Upon adoption of the Plan, the Company will notify
those Employees who it determines are Eligible Employees.
Thereafter, except as otherwise provided in Section 3.2, prior
to each calendar quarter, the Company will notify those Employees
who it determines to have become Eligible Employees for the first
time at the beginning of such calendar quarter. An Employee who is
determined to be an Eligible Employee shall thereafter be eligible
to become a Participant in accordance with Section 3.2.
Notwithstanding the foregoing, any
Employee who was not classified as an Eligible
Employee on December 31, 2008, and any employee hired or
re-hired by the Company on or after January 1, 2009, shall not
be classified as an Eligible Employee on or after January 1,
2009.
7. Section 3.2 is amended to
read as follows:
3.2 Commencement of Participation:
Each Eligible Employee shall be provided an opportunity to
designate the percentage of his or her Eligible Earnings to be
deferred under Section 4.1 and to irrevocably designate the
percentage or dollar amount of his or her annual Bonus to be
deferred under Section 4.4. Any such Eligible Employee who
makes such a designation in the first calendar quarter of 1998
shall become a Participant on the first day of the first payroll
period that commences in the second calendar quarter of 1998
provided the Eligible Employee is employed as of such date.
Thereafter through December 31, 2004, any such Eligible
Employee who (i) makes such a designation and (ii) has
completed 90 days of employment shall become a Participant on the
first day of the month following the month in which such
requirements are met, provided the Eligible Employee is employed as
of such date.
Effective on and after
January 1, 2005, in the first year in which a Eligible
Employee becomes eligible to participate in the Plan, the Eligible
Employee may make a deferral election with respect to compensation
for services to be performed subsequent to the election provided
the election is made within 30 days after the date the Eligible
Employee becomes eligible to participate. In the case of all other
Eligible Employees, including any new Eligible Employee who fails
to make an election within the 30-day period described above,
deferral elections must be made no later than December 31 (or
such other date designated by the Company) of the year before the
year the services related to the deferral election are to be
performed.
Notwithstanding the foregoing
provisions of Sections 3.1 and 3.2, effective January 1, 2000,
if the Company determines that an Employee is an Eligible Employee
hereunder after such Employee has ceased to be an eligible employee
under the Royal Caribbean Cruises Ltd. 401(k) Plan, such Eligible
Employee may become a Participant in this Plan in accordance with
the deferral election provisions of the preceding
paragraph.
Any such designation under this
Section 3.2 must be made in the manner authorized by the
Company and must be accompanied by:
(a) an authorization for the
Eligible Employee’s Employer to make regular payroll
deductions to cover the amount of such deferrals elected pursuant
to Section 4.1;
(b) an irrevocable
authorization to defer receipt of a percentage or a dollar amount
of future Bonus amounts as elected under
Section 4.4;
(c) an investment election with
respect to any Employee Deferral Contributions and Bonus
Deferrals;
(d) a designation of Beneficiary;
and
(e) a designation as to the
form and timing of the distribution of his or her Participant
Account.
Notwithstanding the foregoing,
effective January 1, 2009, no Employee who was not a
Participant in the Plan on December 31, 2008, and no employee
hired or re-hired by the Company on or after January 1, 2009,
shall become a Participant in the Plan.
8. Section 4.1 is amended to
read as follows:
4.1 Employee Deferral Contributions:
Effective on or before December 31, 2008, each Participant may
authorize the Employer by which he or she is employed, in the
manner described in Section 3.2, to have an Employee Deferral
Contribution made on his or her behalf. Such election shall apply
to the Participant’s Eligible Earnings attributable to
services performed during the designated period covered by the
election, as provided in Section 3.2. Such Employee Deferral
Contribution shall be a stated whole percentage of the
Participant’s Eligible Earnings, equal to not less than 2%
nor more than 20%, as designated by the Participant. The percentage
of Eligible Earnings designated by a Participant to measure the
Employee Deferral Contributions to be made on the
Participant’s behalf shall remain in effect, notwithstanding
any change in his or her Eligible Earnings, until he or she elects
to change or suspend such percentage in accordance with
Section 4.2 or Section 4.3, below. Effective on and after
January 1, 2009, a Participant may not elect to make Employee
Deferral Contributions to the Plan, and the Employer may not make
Employee Deferral Contributions to the Plan.
9. Section 4.2 is amended to
read as follows:
4.2 Changes in Contributions:
Effective on or before December 31, 2008, a Participant may
change his or her cont
