TO: Carnival Corporation ("Offeror")
3655 NW 87 Avenue
Miami, Florida
United States of America
and 21 February, 1996
CS First Boston Limited
One Cabot Square
London E14 4QJ
United Kingdom
Dear Sirs,
Proposed partial offers for shares in Airtours plc
6. This letter sets out the terms on which I undertake to accept
the offer to be made by (or on behalf of) Offeror (the "Ordinary
Offer") to acquire up to 20,000,000 ordinary shares representing
17.34 per cent of the current issued ordinary share capital of
Airtours plc ("Offeree").
7. The Ordinary Offer and the offer by (or on behalf of) Offeror
(the "Preference Offer") to acquire up to 8,758,612 convertible
cumulative preference shares representing 17.34 per cent of the
issued convertible cumulative preference share capital of
Offeree (together with the Ordinary Offer, "the Offers") shall
be made substantially on the terms of the attached draft press
announcement (the "Press Announcement"), any additional terms
and conditions as may be required to comply with the
requirements of The City Code on Takeovers and Mergers (the
"Code"), the London Stock Exchange and the Securities and
Exchange Commission and any additional terms and conditions
agreed between Offeror and Offeree.
8. I warrant and undertake to you that:
8.1 I am the registered holder and beneficial owner of 30,000,000
(the "Offeree Ordinary Shares") ordinary shares of 10p each in
the capital of Offeree ("Ordinary Shares");
8.2 I hold the Offeree Ordinary Shares free from any lien, charge
or other encumbrance, equity or third party right of any nature;
and
8.3 I have full power and authority to accept the Ordinary Offer in
respect of such number of Offeree Ordinary Shares as is referred
to in paragraph 4.
4.1 I shall (save as provided herein) irrevocably accept the
Ordinary Offer in respect of 5,201,224 of the Offeree Ordinary
Shares ("the Shares").
4.2 My acceptance in respect of the Shares shall be made by 09.00
am (London time) on the first closing date of the Offers in
accordance with the procedure for acceptance set out in the
formal document containing the Offers (the "Offer Document") to
be despatched to Shareholders.
4.3 I undertake that Offeror will acquire the Shares pursuant to the
Ordinary Offer free from any lien, charge, or other encumbrance,
equity or other third party right of any nature and together
with all rights of any nature attaching or accruing to them
including the right to all dividends declared, made or paid
after the date of this letter.
4.4 I shall elect to receive only Class A Common Stock of Offeror
as consideration under the Ordinary Offer.
4.5 My obligations under paragraphs 4.1 to 4.4 (inclusive) shall not
apply to prevent me accepting in respect of all my Offeree
Ordinary Shares (but not some only) and shall terminate in the
event that there is made a general offer made by a third party
to acquire the whole of the issued ordinary share capital of
Offeree (other than ordinary shares already held by such third
party or persons acting in concert therewith), which is
unanimously recommended by the directors of Offeree, on terms
which represent (in the opinion of the Directors of Offeree) an
improvement on the value of the consideration offered under the
Ordinary Offer as at the date on which a firm intention to make
such general offer is announced (a "Competing Offer"). In the
event that I accept a Competing Offer and if the Competing Offer
is declared wholly unconditional, I shall pay you a cash sum
and/or transfer securities to you (as provided below) having an
aggregate value in an amount equal to 20% of the product of (i)
30,000,000 and (ii) the difference between the amount per
Ordinary Share of (a) the cash and the fair market value of any
other consideration given to the holders of the Ordinary Shares
pursuant to the Competing Offer, as determined by the directors
of Offeree in good faith, and (b) L4.50. I shall pay
cash/transfer securities (as provided below) to you of an
aggregate value equal to such amount the business day after I
receive the consideration under the Competing Offer. In respect
thereof, you hereby agree if requested by me to accept payment
by way of the transfer of non-cash consideration including loan
notes (other than loan notes received by me in respect of a
Competing Offer which becomes or is declared unconditional in
all respects on or after April 7, 1996) of the same type to the
extent and in the same percentage (or such lower percentage as
I may specify) as I receive it as consideration under the
Competing Offer provided however that I will be responsible for
paying all costs and expenses incurred in transferring any
securities or other non-cash consideration (including, for the
avoidance of doubt all transfer or other taxes) to the Offeror.
Notwithstanding the foregoing provisions, with respect to any
non-cash consideration that I receive in respect of a Competing
Offer which becomes or is declared unconditional in all respects
prior to April 7, 1996, you hereby agree that I shall have no
obligation hereunder to make any payment or transfer of non-cash
consideration in your favour (or to determine in what manner any
liability which I may on April 7, 1996, have to you hereunder
is to be discharged) until April 7, 1996. Notwithstanding my
absolute obligation to pay cash/transfer securities (as
aforesaid) to you of an aggregate value equal to such amount as
aforesaid, you agree that you shall discuss with me and consider
in good faith potential alternative structures which I may
propose in connection with any liability which I may have to you
in such circumstances in order to help me minimise any tax
liability which may arise by virtue of my accepting the
Competing Offer or otherwise by reason of the provisions of this
paragraph 4.5.
4.6 An offer shall not be prevented from being a Competing Offer
within the meaning of paragraph 4.5 solely by reason of the fact
that, when such offer is announced, the making of it is stated
to be the subject of a precondition to the effect that the
resolution referred to in paragraph 7.1 below is not passed.
5. In order to secure the performance of my obligations under
paragraph 4, I irrevocably appoint any director for the time
being of Offeror to be my attorney in my name and on my behalf
to execute a Form or Forms of Acceptance and/or such other
documents and to do such other acts and things as may be
necessary to accept (or procure the acceptance of) the Ordinary
Offer in respect of the Shares. However:
5.1 the appointment shall not take effect until 09.00 am (London
time) on the first closing date of the Offers and only then if
I have failed to comply with my obligations in paragraph 4.2;
and
5.2 such attorney shall act in accordance with paragraph 4.4 (where
applicable).
6. Although the terms of the Ordinary Offer will give accepting
shareholders the right to withdraw acceptances at any time after
the first closing date of the Offers and before the Offers
become or are declared unconditional in all respects I shall not
withdraw my acceptance of the Ordinary Offer in respect of the
Shares unless a Competing Offer is announced.
7. Until the Ordinary Offer becomes or is declared unconditional
in all respects, lapses or is withdrawn (or a firm intention to
make a Competing Offer, as defined in paragraph 4.5, is
announced):
7.1 I shall exercise the voting rights attached to the Offeree
Ordinary Shares in favour of the resolution (the "Special
Resolution") to be proposed at a general meeting of Offeree for
the purpose of increasing the authorised share capital of
Offeree and disapplying the provisions of section 89 of the
Companies Act 1985 in respect of the proposed allotment to you
by Offeree, as referred to in the Press Announcement, of
20,000,000 new Ordinary Shares;
7.2 Subject to my duties as a director of Offeree, I shall not,
without the prior written consent of Offeror, signed by a duly
authorised director, requisition or join in the requisition of
any general or class meeting of Offeree for the purpose of
considering any resolution affecting or having an impact on the
Offers or the proposed allotment referred to in paragraph 7.1
other than the Special Resolution; and
7.3 Subject to my duties as a director of Offeree, I shall not take
any action or make any statement which is or may be prejudicial
to the success of the Offers (it being agreed that any action
or statement which I may take or make in relation to a Competing
Offer, or an offer or approach which the Board of Directors of
Offeree unanimously believes could be or may become a Competing
Offer or lead to the person making such approach (or on whose
behalf such approach is made) making a Competing Offer, shall
not constitute a breach of this paragraph 7.3).
And in particular (without limitation):
7.4 Subject to the provisions of paragraph 4.5, I shall not offer
any Offeree Ordinary Shares to any person or accept any other
offer in respect of all or any of the Offeree Ordinary Shares;
7.5 I shall not make any offer to acquire or acquire the whole or
any part of the issued share capital of Offeree and I shall
procure that no company which I control (as such term is defined
in Section 840 of the Income and Corporation Taxes Act 1988),
will make such an offer or acquisition; and
7.6 I shall not enter into any agreement or arrangement with any
person, whether conditionally or otherwise, to do any of the
acts referred to in this paragraph 7.2 to 7.5;
Provided always that nothing in this paragraph 7 (or elsewhere
in this letter) shall prevent me from (i) engaging in
discussions with any person or persons in connection with a
Competing Offer (as defined in paragraph 4.5), or any offer or
approach which the Board unanimously believes could be or may
become a Competing Offer or lead to the person making such
approach (or on whose behalf such approach is made) making a
Competing Offer or (ii) at any time after the Board unanimously
comes to believe that any such offer, if made, would constitute
a Competing Offer, undertaking to accept and/or recommend to
shareholders, or recommending, any such offer or allowing any
such undertaking to be referred to in any announcement of a
Competing Offer.
8. I agree to:
8.1 the issue of the Press Announcement in the terms attached
(including the reference to me);
8.2 details of this undertaking being set out in the Offer Document
and in any document filed by the Offeror with the Securities and
Exchange Commission as a result of the transactions described
herein or my being appointed a director of the Offeror;
8.3 this undertaking being available for inspection during the offer
period (as defined in the Code).
9. I shall supply you promptly on request with all information,
including details of my interests and dealings in securities of
Offeror and Offeree, and (to the extent that such information
is reasonably available to me) those of any other person
interested in the Shares, as may be required by the Code for
inclusion in the Offer Document or as may be required by the
securities laws and regulations of the United States of America
for inclusion in any document filed by the Offeror with the
Securities and Exchange Commission as a result of the
transactions described herein or my being appointed a director
of the Offeror. I shall notify you promptly of any changes to
such information but in relation to the interests and dealings
of any person other than myself, only to the extent that such
changes are notified to me.
10. In my capacity as director of Offeree, I undertake (subject to
my duties as a director of Offeree) to use all reasonable
endeavours to procure that:
10.1 the Offer Document (unless posted after the announcement of
a firm intention to make a Competing Offer, as defined in
paragraph 4.5) is accompanied by a letter from the
directors of Offeree to Offeree shareholders, in a form
agreed with Offeror (such agreement not to be unreasonably
withheld or delayed), in which the directors unanimously
recommend shareholders to vote in favour of the Special
Resolution to the extent that such recommendation is not
inconsistent with their duties as directors;
10.2 Offeree and its directors provide Offeror and its advisers
with any reasonable assistance and information, execute any
documents reasonably required by the Offeror and do
anything reasonably considered to be necessary to enable
Offeror to:
(a) make the Offers in accordance with the requirements of
the London Stock Exchange, the Code and the securities
laws and regulations of the United States of America;
and
(b) despatch the Offer Document promptly.
10.3 Until the Ordinary Offer becomes or is declared
unconditional in all respects, lapses or is withdrawn (or
a firm intention to make a Competing Offer, as defined in
paragraph 4.5, is made):
(a) that without prior consultation with the Offeror and, in so
far as is practicable giving due consideration to its
views, no member of the Offeree Group will enter into any
transaction outside the ordinary course of business which
is material in the context of the Offeree Group as a whole;
and
(b) that without the prior consent of the Offeror:
(i) there is no amendment to the memorandum or articles of
association of any member of the Offeree Group;
(ii) there is no alteration to the authorised or issued
share capital of any member of the Offeree Group
and no options or rights granted over any such
share capital (other than pursuant to the Special
Resolution or in order to satisfy existing rights
or entitlements);
(iii) there is no amendment (other than the coming into
effect of an amendment prior to the date of this
letter which has been disclosed to the Offeror
specifically for the purposes of this letter) to
the service agreement or other arrangements with
any director of Offeree;
(iv) no member of the Offeree Group makes any
acquisition or disposal of assets of a material
amount as defined in Note 2 to rule 21 of the Code
or grants any interest over assets of a material
amount; or
(v) no special resolution is proposed at any general
meeting of the Offeree (other than the Special
Resolution).
11. Offeror's agreement to make the Offers is conditional on no
event occurring or becoming known to you before despatch of the
Offer Document as a result of which the Panel on Takeovers and
Mergers (the "Panel") requires or permits Offeror not to make
the Offer.
12. I agree that until the Ordinary Offer becomes or is declared
unconditional in all respects, lapses or a firm intention to
make a Competing Offer is announced and save as required by law
or the rules of the London Stock Exchange or the Code, I shall
neither for my own account nor on behalf of Offeree (and I shall
not permit any person on my behalf to) (i) initiate, solicit or
encourage, directly or indirectly, any inquiries or the making
of any proposal or offer (including, without limitation, any
proposal or offer to shareholders of Offeree) with respect to
a merger, consolidation or similar transaction involving, or any
purchase of any of the shares of, Offeree or any purchase of any
of any assets of Offeree or any of its subsidiaries having a
value in excess of L25 million (or the shares of entities
holding the same) (any such proposal or offer being hereinafter
referred to as an "Acquisition Proposal," except that
"Acquisition Proposal" shall not include any such transaction
among Offeree and Offeror, Offeree and its wholly owned
subsidiaries or among Offeree's wholly owned subsidiaries) or
(ii) engage in any negotiations concerning, or provide any
confidential information or data to, or have any discussions
with, any person relating to an Acquisition Proposal, or (iii)
otherwise facilitate directly or indirectly any effort or
attempt to make or implement an Acquisition Proposal. I will
immediately terminate and use all reasonable endeavours to
procure (in so far as in my capacity as a Director of Offeree
I am able) that Offeree terminates any existing discussions or
negotiations with any parties conducted to-date with respect to
any Acquisition Proposal. I will promptly notify you if any
such inquiries or proposals are received by me, any such
information is requested from me, or any such negotiations or
discussions are sought to be initiated or continued.
Notwithstanding the foregoing, if Offeree receives a Competing
Offer or an offer or approach which the board of directors of
Offeree unanimously believes could be or may become a Competing
Offer or lead to the person making such approach (or on whose
behalf such approach is made) making a Competing Offer, I will
promptly notify you of such offer or approach and I may engage
in the above-mentioned, or any other, activities.
13.1 I agree that, save as provided in paragraph 13.2 and if and
to any extent the number of Ordinary Shares in respect of
which you do obtain acceptances pursuant to the Ordinary
Offer (including excess applications) falls short of
20,000,000, I will sell to you at the time when the
Ordinary Offer becomes or is declared unconditional in all
respects and you will purchase upon the same terms per
ordinary share as the terms of the Ordinary Offer such
additional number of my Offeree Ordinary Shares as is equal
to such shortfall, save to the extent of any part of such
shortfall which is to be satisfied by Mr T. Trickett
pursuant to the terms of an undertaking of even date
herewith. In respect of any such sale of additional
Offeree Shares, I shall receive consideration in the form
of Class A Common Stock of Offeror on the same terms
(including as to the date of settlement) as under the
Ordinary Offer.
13.2 The provisions of paragraph 13.1 shall terminate upon the
announcement of a Competing Offer and shall be of no effect
at any time after the making of any such announcement.
14. This undertaking will lapse if:
14.1 the Press Announcement is not released by 8.30a.m. on 22
February, 1996;
14.2 the Offer Document is not posted to shareholders of Offeree
within 28 days (or such longer period as the Panel may
agree) after the date of the Press Announcement; or
14.3 the Ordinary Offer lapses or is withdrawn.
If the undertaking lapses, I shall have no claim against Offeror
and Offeror shall have no claim against me.
15. Any date, time or period referred to in this undertaking shall
be of the essence except to the extent to which I and Offeror
agree in writing to vary any date, time or period, in which
event the varied date, time or period shall be of the essence.
16. I have been given a realistic opportunity to consider whether
or not I should give this undertaking and whether I should
receive independent advice about the nature of this undertaking.
17. I agree that damages would not be an adequate remedy for breach
of this undertaking.
18. I acknowledge that, in connection with the Offers, C S First
Boston is acting for Offeror and for no-one else and agree that
C S First Boston will not be responsible to me for providing the
protections afforded to its customers nor for providing advice
in relation to the Offers.
19. This undertaking is governed by English law and we each hereby
submit to the exclusive jurisdiction of the High Court of
Justice in England.
20. I acknowledge that any shares of Class A Common Stock of Offeror
to be acquired by me pursuant to paragraph 13 hereof have not
been and will not be registered under the Securities Act of
1933, as amended (the "Securities Act"), and may not be offered,
sold, resold or delivered directly or indirectly in or into the
United States or to, or for the account or benefit of, a US
person (as defined in Regulation 5 promulgated under the
Securities Act) except pursuant to an available exemption from
registration. I also agree to be bound by the same offering
restrictions as are applicable to shares of Class A Common Stock
to be issued in the Ordinary Partial Offer and agree to make
similar representations to the Offeror in respect of United
States securities laws as if I had signed a form of acceptance
under the Ordinary Partial Offer in respect of any Offeree
Ordinary Shares sold by me pursuant to paragraph 13.1.
Signed as a deed by )
DAVID CROSSLAND ) /s/ David Crossland
in the presence of: )
/s/ R.N.F. Lee Signature of witness
R.N.F. Lee Name of witness
Addleshaw, Sons Latham Address of witness
Dennis House, Marsden St.
Manchester
Solicitor Occupation of witness
Agreed and accepted by
/s/ Howard S. Frank
for and on behalf of
Carnival Corporation
21 February, 1996