DATED 21 FEBRUARY, 1996
(1) CARNIVAL CORPORATION
(2) AIRTOURS PLC
____________________________________________
SUBSCRIPTION AGREEMENT
____________________________________________
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ
Tel: (0171) 600 1000
Fax: (0171) 6000 5555
Ref: SGFB/C3976/24/CWB
CONTENTS
PAGE
1. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . 1
2. THE OFFERS . . . . . . . . . . . . . . . . . . . . . . . . 5
3. CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . 5
4. COMPANY/PURCHASER UNDERTAKINGS . . . . . . . . . . . . . . 6
5. COMPLETION . . . . . . . . . . . . . . . . . . . . . . . . 10
6. SHARE RIGHTS/DIRECTOR RIGHTS . . . . . . . . . . . . . . . 11
8. RESTRICTIONS ON TRANSFER OF SHARES . . . . . . . . . . . . 14
9. STANDSTILL PROVISIONS. . . . . . . . . . . . . . . . . . . 16
10. TERMINATION OF RESTRICTIONS. . . . . . . . . . . . . . . . 17
11. SECURITIES PROVISIONS. . . . . . . . . . . . . . . . . . . 18
12. ANNOUNCEMENTS. . . . . . . . . . . . . . . . . . . . . . . 18
13. CONFIDENTIAL INFORMATION . . . . . . . . . . . . . . . . . 19
14. ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . 21
15. NON COMPETE. . . . . . . . . . . . . . . . . . . . . . . . 21
16. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . 24
17. GOVERNING LAW AND JURISDICTION . . . . . . . . . . . . . . 24
18. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . 25
SCHEDULES
Schedule 1 - Conditions
Schedule 2 - Warranties
Schedule 3 - Provisions for the protection of the Company
Agreed Form Document - Press Release
THIS AGREEMENT is made the 21st day of February, 1996 between:-
1. CARNIVAL CORPORATION a corporation registered in Panama
having its principal place of business at 3655 NW 87th
Avenue, Miami, Florida, USA (" the Purchaser").
2. AIRTOURS PLC a limited liability company registered in
England and Wales (Registered no 742748) and having its
registered office at Parkway Three, Parkway Business Centre,
300 Princess Road, Manchester M14 7QU ("the Company").
WHEREAS
(A) The Purchaser wishes to acquire 40 million Ordinary Shares in
the capital of the Company through making a partial offer for
up to 20 million Ordinary Shares and subscribing for 20
million new Ordinary Shares.
(B) The purpose of this agreement is to regulate such
transactions which will be made on the basis of and
subject to the terms and conditions hereinafter set out.
NOW IT IS HEREBY AGREED as follows:
28. INTERPRETATION
28.1 In this Agreement:-
"the Act" means the Companies Act 1985;
"the Code" means The City Code on Takeovers and Mergers;
"Company Group" means the Company, its subsidiaries and subsidiary
undertakings;
"Completion" means Completion of the obligations of the parties
hereto in accordance with Clause 5;
"Completion Date" means the date on which Completion takes place;
"the Conditions" means the matters on which Completion is
conditional and which are set out in Schedule 1 hereto;
"Directors" means the Board of Directors of the Company;
"Disclosure Information" means:
(a) all information contained in the documents listed in the
Index marked "A" and the Index marked "B", copies of which
have been initialled by or on behalf of the Purchaser and the
Company;
(b) all information contained in the notes of meetings held
between representatives of the Company (or its advisers) and
representatives of the Purchaser (or its advisers) which
notes have been initialled by or on behalf of the Purchaser
and the Company and are contained in the bundle marked "C";
(c) all information contained in copy documentation/files made
available for inspection by the Purchaser and its advisers at
the offices of the Company's auditors, Grant Thornton; and
(d) all information supplied verbally to the Purchaser and its
advisers by any partner or professional employee of Grant
Thornton;
"Forms of Acceptance and Election" means the combined forms
pursuant to which shareholders in the Company can accept the
Ordinary Offer and the Preference Offer respectively and also
elect to receive cash instead of new Common Stock in the Purchaser
by way of consideration;
"Involuntary Transfer" has the meaning given to it in the
Shareholders' Agreement;
"Listing Particulars" means the document which will be published
by the Company in connection with the Subscription and comprising
listing particulars in accordance with the Listing Rules;
"Listing Rules" means the rules made by the London Stock Exchange
pursuant to Section 142 of the Financial Services Act 1986;
"the London Stock Exchange" means London Stock Exchange Limited;
"the Offers" means the Ordinary Offer and the Preference Offer;
"the Offer Document" means the document making the Offers and
incorporating the Listing Particulars;
"the Ordinary Offer" means the partial offer to be made by or on
behalf of the Purchaser for up to 20,000,000 Ordinary Shares upon
the terms and subject to the conditions set out or referred to in
the Press Release;
"Ordinary Shares" means Ordinary Shares of 10p each in the
Company;
"Ordinary Share Equivalents" means any security or obligation
which is by its terms convertible into Ordinary Shares and any
option, warrant or other subscription or purchase right with
respect to Ordinary Shares (including, without limitation, the
Preference Shares and the Airtours plc Share Option Scheme (1986)
or the Airtours plc Savings Related Share Option Scheme);
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated
association, joint venture, joint stock company, governmental body
or other entity of any kind;
"the Preference Offer" means the partial offer to be made by or
on behalf of the Purchaser for up to 8,758,612 Preference Shares
upon the terms and subject to the conditions set out in the Press
Release;
"Preference Shares" means Convertible Cumulative Preference Shares
of 20p each in the Company;
"Press Release" means the Press Release in the agreed form annexed
hereto as Annex A giving details of the Offers and the
Subscription;
"Purchaser Group" means the Purchaser, its subsidiaries and
subsidiary undertakings;
"Shareholders' Agreement" means the shareholders' agreement dated
the date hereof between the Purchaser and David Crossland;
"Shares" means all Ordinary Shares and Ordinary Share Equivalents
held by the Purchaser, whether acquired pursuant to the
Subscription, the Ordinary Offer or the Share Purchase or
thereafter acquired (and including any other shares in the capital
of the Company into which such Ordinary Shares may at any time be
converted and also including any shares in the capital of the
Company arising from the same by reason of any sub-division and/or
consolidation of such Ordinary Shares or by reason of any issue
of shares in the Company by way of capitalisation of reserves);
"the Share Purchase" means the acquisition of additional Ordinary
Shares by the Purchaser and their sale by David Crossland and
Thomas Trickett pursuant to paragraph 13 of the Undertakings;
"the Special Resolution" means the Resolution to be proposed to
the shareholders of the Company to increase the authorised share
capital of the Company, to grant the Directors authority pursuant
to Section 80 of the Act and to authorise the Directors to make
certain allotments (including the allotment of the Subscription
Shares to the Purchaser) without complying with the pre-emption
provisions set out in Section 89 of the Act;
"the Subscription" means the subscription by the Purchaser for the
Subscription Shares pursuant to the terms hereof;
"the Subscription Shares" means the 20,000,000 new Ordinary Shares
of 10p each in the Company to be subscribed by the Purchaser
pursuant to the Subscription;
"Warranty" means a statement contained in Schedule 2 and
"Warranties" means all those statements;
"the Undertakings" means the irrevocable undertakings of even date
herewith given by each of David Crossland and Thomas Trickett to
the Purchaser in connection with the Offers and the Share
Purchase;
"Wholly Owned Subsidiary" means, in relation to the Purchaser, any
subsidiary of the Purchaser all of whose voting securities are
owned directly or indirectly by the Purchaser and, in relation to
the Company, any subsidiary of the Company all of whose voting
securities are owned directly or indirectly by the Company;
28.2 In this Agreement, a reference to:-
28.2.1 a "subsidiary undertaking" or "parent undertaking" is to
be construed in accordance with Section 258 of the Act
and a "subsidiary" or "holding company" is to be
construed in accordance with section 736 of the Act;
28.2.2 a document in the "agreed form" is a reference to a
document in a form approved and for the purposes of
identification signed by or on behalf of each party or in
another form as may be agreed by or on behalf of each
party;
28.2.3 a statutory provision includes a reference to the
statutory provision as modified or re-enacted or both
from time to time before the date of this Agreement and
any subordinate legislation made under the statutory
provision before the date of this Agreement;
28.2.4 a person includes a reference to a body corporate,
association or partnership;
28.2.5 a clause or schedule, unless the context requires
otherwise, is a reference to a clause of or a schedule to
this Agreement.
28.3 The headings in this Agreement do not affect its
interpretation.
29. THE OFFERS
Within 28 days of the date hereof (or by such later date as the
Panel on Takeovers and Mergers may agree) the Purchaser will post
the Offer Document (together with the Forms of Acceptance and
Election) to the holders of Ordinary Shares and Preference Shares.
The Offer Document shall be accompanied by a circular from the
Company incorporating a Notice convening an Extraordinary General
Meeting of the Company to be held on the first closing date of the
Ordinary Offer and at which the Special Resolution will be
proposed.
30. CONDITIONS
30.1 Completion is conditional on the Conditions being satisfied,
or being waived as hereinafter permitted, on or before 30th
May 1996 or such later date as may be agreed between the
parties.
30.2 The Purchaser and the Company shall make all reasonable
efforts to achieve satisfaction of each of the conditions as
soon as reasonably possible and if at any time either of them
becomes aware of a matter which might prevent a condition
being satisfied it shall immediately inform the other.
30.3 At any time the Purchaser may waive either of Conditions 5
and 8 by notice to the Company and the Purchaser and the
Company jointly may agree to waive either of Conditions 6 and
7. The Purchaser may at any time waive Condition 6 without
the agreement of the Company provided that it has been
established to the reasonable satisfaction of the Company
that neither the lack of any such authorisation, order,
grant, recognition, confirmation, consent, clearance,
licence, permission, exemption or approval as are referred to
in that Condition, nor any other matter arising in respect of
or as a result of the Offers and/or the Share Purchase and/or
the Subscription, will entitle any government, governmental,
quasi-governmental, supranational, statutory or regulatory
body, trade agency, professional body, association,
institution, environmental body or court to make any order or
take any other action requiring any member of the Company
Group to take, or refrain from taking, any action, which
action or refraining from action would in the Company's
opinion have an adverse effect on any member of the Company
Group. If all the Conditions have not either been satisfied
or so waived on or before 30 May 1996, or such later date as
may be agreed between the parties, then this Agreement shall
automatically cease and determine (save for the provisions of
Clause 13) and neither party hereto shall have any claim
against the other save in respect of any liability then
accrued due.
31. COMPANY/PURCHASER UNDERTAKINGS
31.1 The Company hereby undertakes to the Purchaser that:-
31.1.1 to the extent applicable, the Company and the Purchaser
shall forthwith make all filings and furnish all
information required with respect to the transactions
contemplated by this Agreement by the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 (the "HSR Act") and
any other foreign antitrust laws and shall use all
reasonable endeavours to obtain the early termination of
the waiting period under the HSR Act and all other
required approvals under foreign antitrust laws provided
however that no member of the Company Group or of the
Purchaser Group shall be required to agree to dispose of
or hold separate any portion of its business or assets;
31.1.2 prior to Completion neither the Company nor any of its
subsidiaries nor subject to their fiduciary duties any of
the respective officers and directors of the Company or
any of its subsidiaries shall, and the Company shall use
all reasonable endeavours to cause its employees, agents
and representatives (including, without limitation, any
investment banker, attorney or accountant retained by the
Company or any of its subsidiaries) not save as required
by law, or the rules of the London Stock Exchange or the
Code to, (i) initiate, solicit or encourage directly or
indirectly, any enquiries or the making of any proposal
or offer (including, without limitation, any proposal or
offer to shareholders of the Company) with respect to a
merger, consolidation or similar transaction involving,
or any purchase of any shares of, the Company or any
purchase of any of the assets of the Company 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 transaction between the
Purchaser and the Company or the Company and a Wholly
Owned Subsidiary of the Company or among the Company'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.
The Company will immediately cease and cause to be
terminated any existing discussions or negotiations with
any parties conducted to-date with respect to any
Acquisition Proposal. The Company will take the
necessary steps to inform its directors of the
obligations undertaken in this Clause 4.1.2. The Company
will promptly notify the Purchaser if any such enquiries
or proposals are received by it or any such negotiations
or discussions are sought to be initiated or continued.
Nothing contained in this Agreement shall prohibit the
Company, its subsidiaries and its respective officers and
directors from (A) doing any of the foregoing with
respect to asset sales or sales of securities in the
ordinary course of business or (B) recommending its
shareholders to vote in favour of the Special Resolution;
31.1.3 if the Company receives (i) a general offer made by a
third party to acquire the whole of the issued ordinary
share capital of the Company (other than Ordinary Shares
already held by such third party or persons acting in
concert with it) which is unanimously recommended by the
Directors, on terms which represent (in the opinion of
the Directors) an improvement on the value of the
Ordinary Offer as at the date on which a firm intention
to make such general offer is announced (a "Competing
Offer") or (ii) an offer or approach which the Directors
unanimously believe 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, the Company may engage in the activities described
in Clause 4.1.2. The Company will promptly inform the
Purchaser if any enquiries or proposals with respect to
a Competing Offer (or any such offer or approach as
described in (ii) above) are received by it, any such
information is requested from it, or any such
negotiations or discussions are sought to be initiated or
continued;
31.1.4 the Company will provide Micky Arison and Howard S. Frank
and their professional advisers with all such information
concerning the Company Group as they shall reasonably
require for the purpose of satisfying themselves as to
the accuracy and completeness of the Listing Particulars;
4.1.5 So long as the Purchaser (or any member of the Purchaser
Group, which is also a permitted assignee pursuant to clause
14 hereof) owns at least 10% of the ordinary share capital of
the Company in issue from time to time (or, in the case of
clause 4.1.5.2 only, at least 5% of such ordinary share
capital during any tax year) the Company hereby agrees that
it shall provide the Purchaser, as soon as reasonably
practicable following receipt of a request from the
Purchaser, but in any event no later than the date reasonably
requested by the Purchaser, with such financial statements or
financial, tax and other information as are necessary in
order to enable the Purchaser to prepare and/or file:
4.1.5.1 any annual reports, quarterly reports, registration
statements or other documents that it is required to file
with the Securities and Exchange Commission ("the SEC")
or any other regulator in the Unites States, its being
agreed by the Company that nothing in this clause 4.1.5
shall prevent the Purchaser entering into or proposing to
enter into any agreement, transaction or arrangement on
a purely voluntary basis and that if any such agreement,
transaction or arrangement into which the Purchaser
enters or proposes to enter gives rise to a requirement
on the part of the Purchaser to file a document with the
SEC or any other regulator in the United States, the
provisions of this clause shall apply notwithstanding the
fact that there was no requirement for the Purchaser to
enter into or propose to enter into such agreement,
transaction or arrangement;
4.1.5.2 any tax returns or other forms required to be filed
(including any required to be filed pursuant to any
election for tax purposes made under any law or
regulation) with any tax authority having jurisdiction
over any member of the Purchaser Group or any of the
principal stockholders of the Purchaser or any Purchaser
Director.
4.1.6 The Company acknowledges and agrees that after the Closing
Date and so long as the Purchaser (or any member of the
Purchaser Group which is also a permitted assignee pursuant
to clause 14 hereof), owns at least 10% of the ordinary share
capital of the Company:
4.1.6.1 all financial statements or information provided by it
under Clause 4.1.5 shall be conformed, in such manner as
shall be advised to the Company by the Purchaser from
time to time (or in the absence of any such advice from
the Purchaser in such manner as shall be determined by
the Company or advised to the Company by its auditors) so
as to be in accordance with United States generally
accepted accounting principles (any disbursement cost
incurred by the Company, including to its auditors, in so
conforming such financial statements or information to be
borne by the Purchaser) it being agreed between the
parties that if the Purchaser disagrees with the
interpretation of the requirements of US GAAP advised to
the Company by its auditors, the Company shall in respect
of future financial statements or information carry out
such conforming in accordance with the interpretation of
the requirements of US GAAP advised to the Company by the
Purchaser (and shall, to the extent necessary, reconform
any financial statements or information previously
supplied for inclusion in any filing which the Purchaser
is to make with the SEC), but the Company shall not be
deemed to have breached the provisions of this clause
4.1.6 in respect of the financial statements or
information supplied prior to receipt of such advice from
the Purchaser;
4.1.6.2 if required by law or regulation applicable to the
Purchaser or if requested by the SEC or any other
regulator having jurisdiction over the Purchaser, the
Company shall use its best endeavours to procure that
there is provided an audit report from its auditors and
a consent from its auditors to the SEC or such other
regulator, any costs of such auditors in relation thereto
to be borne by the Purchaser;
4.1.6.3 if required by the underwriter or underwriters in a
public offering of the Purchaser's securities, the
Company shall use its best endeavours to cause its
auditors to provide to such underwriter or underwriters
and to the Purchaser a customary "comfort letter", any
costs of such auditors in relation thereto to be borne by
the Purchaser; and
4.1.6.4 if required by the Purchaser, the Company shall use all
reasonable endeavours to procure that the independent
accountants of the Purchaser are given access, upon
reasonable prior notice, to inspect the audit working
papers of the Company's auditors
4.1.7 If the Company's auditors fail to provide the Purchaser's
independent accountants with access to its working papers or
fail to provide any of the materials described in sub-clauses
4.1.6.2 and 4.1.6.3 above, then the Company agrees to provide
to the Purchaser's independent accountants access to its
records (financial and otherwise) so that the Purchaser's
independent accountants can review or audit any financial
statements or information provided by the Company under
clauses 4.1.5 and 4.1.6 or provide any of the materials
described in sub-clauses 4.1.6.2 and 4.1.6.3 above. If the
Company appoints new auditors, it agrees that it shall inform
such auditors of the provisions of these clauses 4.1.5 to
4.1.7 and seek to secure their confirmation that, as of the
date of their appointment and based upon then current law and
regulations, they would be able to comply with any request of
the Purchaser under sub-clauses 4.1.6.2 to 4.1.6.4.
31.2 The Purchaser hereby undertakes to the Company that, as soon
as reasonably practicable, it shall provide such information
as the Company shall reasonably request for inclusion in the
Listing Particulars or in any other document or announcement
required by the Listing Rules, the Act or the Financial
Services Act 1986 to be published or made by the Company in
connection with the Offers and/or the Subscription.
32. COMPLETION
32.1 Completion shall take place at the registered office of the
Company or at such other address as may be agreed between the
parties contemporaneously with the satisfaction (or waiver)
of the last of the Conditions when:-
32.1.1 the Purchaser will subscribe for the Subscription Shares
in cash at a price of 500p per share upon and subject to
the terms of the Company's Memorandum and Articles of
Association (and in the event of any failure by the
Purchaser so to do the Company is hereby authorised to
treat this Agreement as an application by the Purchaser
to subscribe for the Subscription Shares in accordance
with the terms hereof at 500p in cash per share payable
in full on allotment) and by electronic transfer to the
bank account nominated by the Company pay the aggregate
subscription price therefor amounting to L100,000,000;
32.1.2 the Directors will allot and issue the Subscription
Shares, register the Purchaser as the holder thereof in
the Company's register of members and deliver a share
certificate for the Subscription Shares to the Purchaser;
32.1.3 Mr Micky Arison and Mr Howard S. Frank will be appointed
Directors of the Company;
32.1.4 the Purchaser shall deliver to the Company the notice
required pursuant to sections 198 to 203 of the Act in
respect of its interest in the Company and shall procure
the delivery to the Company by each of the individuals
referred to in clause 5.1.3 of:
32.1.4.1 the notice (if any) required from each of them
pursuant to sections 324 to 328 of the Act in
respect of their respective interests in the
Company; and
32.1.4.2 Form 288, duly completed and signed by such
individual so as to indicate his consent to his
appointment as a director of the Company.
32.2 The parties shall use all reasonable endeavours to procure
that the last Condition (save for condition 3) is satisfied
(or waived) on a closing date of the Ordinary Offer and that
condition 3 is satisfied on the next following business day.
32.3 In the event that the Purchaser shall fail to pay the
subscription monies referred to in clause 5.1 in full on the
date fixed for the Completion in accordance with Clause 5.1,
the Company shall have the right by notice to the Purchaser
served on the Completion Date to rescind this Agreement
whereupon each party's rights and obligations hereunder shall
automatically cease and determine (other than in respect of
Clause 13) and (save aforesaid) neither party hereto shall
have any claim against the other save in respect of any
liability then accrued due.
33. SHARE RIGHTS/DIRECTOR RIGHTS
33.1 The Subscription Shares shall be issued free from all liens,
charges and encumbrances and as from their date of allotment
and issue they shall rank pari passu in all respects with the
Ordinary Shares then in issue.
33.2 The Purchaser shall have the right to nominate two Directors
for appointment to the Board of Directors of the Company for
so long as it owns Ordinary Shares representing at least 20%
of the ordinary share capital in issue from time to time and
the Purchaser owns Ordinary Shares which (taking full account
of any subdivision or consolidation of the ordinary share
capital of the Company, or any issue by the Company by way of
capitalisation of reserves after the date of this Agreement)
represent at least 75% of the aggregate number of Ordinary
Shares acquired by the Purchaser pursuant to the Ordinary
Offer, the Subscription and the Share Purchase. Subject to
the other provisions of this Clause 6.2, the Purchaser's
rights under the preceding sentence shall continue if the
Purchaser owns Ordinary Shares representing less than 20% of
the ordinary share capital of the Company in issue from time
to time if such percentage falls below 20% solely by reason
of the Purchaser not participating in any issue of Ordinary
Shares by the Company which is not made available to the
Purchaser (a "Restricted Share Offer"). The rights of the
Purchaser under the first sentence of this Clause 6.2 shall
continue to apply, but in respect of only one Director if
either (a) the Purchaser's percentage ownership of the
ordinary share capital of the Company falls below 20% other
than solely by reason of the Purchaser not participating in
a Restricted Share Offer or (b) if such percentage ownership
falls below 15% for any reason. Once the Purchaser's
percentage ownership in the ordinary share capital of the
Company has fallen below 15%, other than solely by reason of
the Purchaser not participating in a Restricted Share Offer,
or below 10% for any reason, the rights of the Purchaser
under this Clause 6.2 shall be extinguished.
33.3 The Company shall each take all necessary steps to appoint
and (save as provided below) maintain on the Board of the
Company the individual or individuals which the Purchaser is
entitled to nominate for appointment. The directors so
nominated as at Completion shall be the two individuals
referred to in clause 5.1.3. The identity of any alternative
individuals to be so nominated shall be subject to the
approval of the Company which shall not be unreasonably
withheld or delayed. The Company shall not be obliged
hereunder to maintain (or seek to maintain) on the Board of
the Company (or to seek to procure reinstatement on such
Board of) an individual whose office as a director of the
Company is vacated pursuant to the Articles of Association of
the Company or in respect of whom a resolution of the Company
in General Meeting removing him from such office is passed or
a resolution of the Company in General Meeting in relation to
his appointment or re-appointment as a director fails to be
passed. The Purchaser shall procure, if there is any
reduction or extinguishing of its rights pursuant to Clause
6.2, that one or both (as the case may be) of its nominated
individuals resigns forthwith from the Board of Directors of
the Company and shall also procure that if it nominates an
alternative individual for appointment to such Board, the
nominated individual which such individual is to replace
resigns forthwith from such Board. Any resignation which the
Purchaser is to procure pursuant to this Clause 6.3 shall be
in writing, executed as a deed and shall contain an
irrevocable and unconditional waiver from the resigning
individual of any claim which he has, or may have, against
the Company solely in connection with such resignation.
33.4 For so long as the Company is not a subsidiary of another
Person, the Purchaser shall not exercise any voting rights it
may have in the Company in relation to or on any resolution
which refers or relates to action taken or proposed to be
taken by any of the Company's subsidiaries which holds an air
carrier operating licence (as defined in Article 2(c) of
Council Regulation No. 2407/92/EC) issued by a Member State
of the European Community ("Relevant Subsidiary") except
those relating to:
(a) the amount and/or timing of any dividend or other
distribution to be declared by the Relevant Subsidiary;
(b) alterations or amendments to the Relevant Subsidiary's
articles of association;
(c) increases or reductions in the Relevant Subsidiary's issued
share capital;
(d) any liquidation or winding-up of the Relevant Subsidiary;
(e) any acquisition or disposal by the Relevant Subsidiary of any
shares or other securities in another Person, other than in
the ordinary course of the Relevant Subsidiary's business;
(f) any amalgamation of the Relevant Subsidiary with another
Person;
(g) the incurring by the Relevant Subsidiary of indebtedness of
a nominal amount exceeding in any one case US$ 100 million
(and for the avoidance of doubt the incurring of indebtedness
on or in relation to separate transactions shall not for this
purpose be aggregated).
33.5 In connection with any change to the capital structure of a
Relevant Subsidiary with a view to establishing contingency
arrangements to meet the circumstances of majority ownership
of a Relevant Subsidiary ceasing to be vested in EU nationals
(as referred to in the letter of 2 February, 1996 from the
Civil Aviation Authority addressed to the Company) the
Company shall, so far as reasonably practicable:
(a) supply drafts of the documentation proposed to effect such
change, together with details of the proposed shareholders or
investors in such changed capital structure, to the Purchaser
and give due consideration to any reasonable comments of the
Purchaser in relation thereto made during a reasonable period
after the supply of such drafts; and
(b) notify the Purchaser in advance of any intention on the part
of the Company to implement such change and give due
consideration to any reasonable comments of the Purchaser in
relation thereto made during a reasonable period after such
notification.
Provided that nothing in this Clause 6.5 shall prevent the Company
implementing any such change if it considers that such is in the
best interests of the Company Group.
34. WARRANTIES
34.1 At the date of this Agreement, the Company hereby warrants to
the Purchaser in the terms of Schedule 2. For the avoidance
of doubt the Warranties shall not be or be deemed to be
repeated at any time after the date of this Agreement.
34.2 The Company acknowledges that the Purchaser is entering into
this Agreement in reliance on each Warranty which has also
been given as a representation and with the intention of
inducing the Purchaser to enter into this Agreement.
34.3 If, on or before the date of Completion, the Purchaser
considers that the Company is in breach of a Warranty and the
Purchaser has a bona fide belief that, were this Agreement to
proceed to Completion, such breach would give rise to a claim
by the Purchaser for damages exceeding L15 million, and the
Purchaser delivers to the Company an opinion of Queen's
Counsel to the effect that, were this Agreement to proceed to
Completion, such breach would give rise to a claim by the
Purchaser which would, on the balance of probabilities,
result in an award of damages in favour of the Purchaser in
a sum exceeding L15 million ("the Opinion"), the Purchaser
may by notice (given at any time after the delivery of the
Opinion, but before Completion) to the Company elect to
terminate this Agreement whereupon each parties rights and
obligations under this Clause 7 and all other clauses of this
agreement (other than clause 13) including accrued rights and
obligations at the date of termination, cease and determine
immediately such that, for the avoidance of doubt, the
Purchaser shall have no claim against the Company in respect
of the breach of Warranty giving rise to such termination.
If the Purchaser becomes aware prior to Completion of any
breach of Warranty which would entitle it to terminate this
Agreement pursuant to this Clause 7.3, and the Purchaser
proceeds to Completion, the Company shall have no liability
to the Purchaser in respect of such breach.
34.4 The Warranties shall not in any respect be extinguished or
affected by Completion.
34.5 The Purchaser hereby confirms to the Company that having read
the Disclosure Information or been made aware verbally by a
partner or professional employee of Grant Thornton in the
case of Disclosure Information supplied by it the Purchaser
has no actual knowledge, at the date hereof, of any fact or
circumstance which would entitle it to make a claim for
breach of the Warranties.
34.6 The Purchaser hereby acknowledges that it does not enter into
this Agreement in reliance on any warranties,
representations, undertakings, covenants or indemnities
(express or implied) howsoever or to whomsoever made except
those arising pursuant to the Undertakings, the Shareholders
Agreement or the Warranties.
34.7 The provisions of Schedule 3 shall apply as if set out
herein.
35. RESTRICTIONS ON TRANSFER OF SHARES
35.1 Prior to the second anniversary of the Completion Date, the
Purchaser shall not sell, give, assign, hypothecate, pledge,
charge, encumber, grant a lien or security interest in or
otherwise transfer (whether by operation of law or otherwise)
any Shares or any right, title or interest therein or thereto
(including, without limitation, any beneficial interests or
voting rights in the Shares)(each a "transfer"), except (i)
in accordance with the provisions of this Agreement or (ii) with the
consent of the Company. Any attempt to transfer any Shares
or any rights thereunder in violation of this Clause shall be null
and void ab initio.
35.2 Notwithstanding anything to the contrary contained in this
Agreement, the Purchaser may transfer any or all of its
Shares to any of its Wholly Owned Subsidiaries or any Person
who acquires all or substantially all of the assets of the
Purchaser (any Person to whom the Purchaser may so transfer
Shares being referred to hereinafter as a "Permitted
Transferees") provided that if any Permitted Transferee
ceases to be a Wholly Owned Subsidiary the Purchaser shall
forthwith procure the re-transfer to the Purchaser or another
Permitted Transferee of the Purchaser of all the Shares then
held by the Permitted Transferee which ceases to be a Wholly
Owned Subsidiary.
35.3 If the Purchaser wishes to transfer Shares under Clause 8.2,
it shall give notice to the Company of its intention to make
such transfer not less than seven (7) days prior to effecting
such transfer, which notice shall state the name and address
of each Permitted Transferee to whom such transfer is
proposed and the number and class of Shares proposed to be
transferred to such Permitted Transferee. For the avoidance
of doubt, the Ordinary Shares acquired by the Purchaser
pursuant to the Subscription, the Offers and the Share
Purchase shall not be transferred (or agreed to be
transferred) to any Permitted Transferee within 7 days
following the date upon which such Shares are registered in
the name of the Purchaser.
35.4 No transfer may be made pursuant to Clause 8.2 unless the
Permitted Transferee has agreed in writing in respect of the
Shares so transferred to be bound by the terms and conditions
of this Agreement. With respect to any Shares transferred to
a Permitted Transferee, the Permitted Transferee shall be
substituted for, and enjoy the same rights and be subject to
the same obligations in relation to the relevant Shares, as
its predecessor hereunder.
35.5 If, at any time on or after the second anniversary of the
Completion Date (or at any time prior to that anniversary but
after the occurrence of an event specified in Clause 10(b)),
the Purchaser wishes to transfer or otherwise dispose of any
Shares (other than to a Permitted Transferee in accordance
with Clause 8.2), the Purchaser shall first notify the
Company in writing of such intention and shall not enter into
(or agree to enter into) such transfer or disposition until
at least 15 days after the giving of such notice. During such
15 day period, the Company may arrange for a Person or
Persons to make an offer to purchase such Shares and the
Purchaser and the Company agree to discuss such offer. Under
no circumstances shall the Purchaser be obligated to sell any
of its Shares to such Person or Persons by virtue of this
Clause 8.5.
35.6 Without complying with this Clause 8, the Purchaser may
transfer any or all of its Shares pursuant to (a) a general
offer, a tender offer or partial offer commenced by any
Person which is unanimously recommended by the Directors, (b)
a general offer made by any Person for the entire issued
ordinary share capital of the Company (other than Ordinary
Shares held by such Person or by Persons acting in concert
with it) or (c) a merger, recapitalisation, reorganisation,
scheme of arrangement, consolidation or similar transaction
approved by the holders of Ordinary Shares.
36. STANDSTILL PROVISIONS
36.1 The Purchaser hereby undertakes to the Company that during
the Standstill Period (as defined below) it will not,
directly or indirectly, unless in any such case specifically
requested in advance to do so by the Directors or required to
do so by the Panel on Takeovers and Mergers, acquire any
Ordinary Shares or Ordinary Share Equivalents or convert any
Preference Shares such that the Purchaser (and any Person or
Persons acting in concert, within the meaning of the Code,
with the Purchaser) holds (or together hold) or exercises (or
together exercise) the voting rights attached to more than
29.9% of the issued Ordinary Shares, provided that the
Purchaser shall not be in breach of this Clause 9.1 by virtue
of the combined holding of the Purchaser and David Crossland
exceeding 29.9% of the issued Ordinary Shares in
circumstances where the Purchaser neither holds, nor
exercises the voting rights attached to more than 29.9% of
the issued Ordinary Shares.
36.2 Nothing in this Clause 9, shall preclude the Purchaser from
acquiring any Ordinary Shares as a result of any subdivision
and/or consolidation of the ordinary share capital of the
Company or as a result of any issue of Ordinary Shares by way
of capitalisation of reserves, (other than in circumstances
where such Ordinary Shares are allotted in lieu of a cash
dividend) or from acquiring any Preference Shares.
36.3 As used herein, the term "Standstill Period" shall mean the
period from the Completion Date until the earlier to occur
of:
(i) the first anniversary of the Completion Date; and
(ii) without encouragement by or the participation of the
Purchaser or any member of the Purchaser Group (a) the
acquisition by any Person or Persons (other than the
Purchaser or any member of the Purchaser Group) of, or
the making of any general offer, tender offer or partial
offer by any Person or Persons (other than the Purchaser
or any member of the Purchaser Group) for, or the public
announcement of a firm intention on the part of any
Person or Persons (other than the Purchaser or any member
of the Purchaser Group) which intention is not or has
ceased to be subject to the satisfaction of any
conditions to acquire (by any means), Ordinary Shares
which, if added to the Ordinary Shares (if any) already
owned by such Person or Persons would represent thirty
percent (30%) or more of the total number of the
outstanding Ordinary Shares in issue at the relevant
time, (b) the receipt by any such Person or Persons of
the Company's agreement or consent to make such an
acquisition or (c) the Company publicly announcing its
intent to enter into or its entering into an agreement to
(i) merge, consolidate or otherwise combine with another
Person or (ii) to sell all or substantially all of the
assets or undertaking of the Company.
36.4 The Company undertakes to give the Purchaser at least five
days prior written notice of any proposed issue or issues of
equity securities (or securities convertible into equity
securities or the conversion of such securities into equity
securities) with an aggregate nominal value which will exceed
(or which, on conversion would exceed) 1% of the aggregate
nominal value of the ordinary share capital of the Company in
issue on the date of such notification, the Purchaser hereby
acknowledging that such notification need not be in writing
if the proposed issue or issues is/are discussed at a meeting
of the Directors at which either or both of the Directors
nominated by the Purchaser pursuant to Clause 6 are present.
36.5 The Company undertakes to the Purchaser that, at any time
when the Purchaser has the right pursuant to Clause 6.2 to
nominate for appointment at least one director of the
Company, it will not without the prior written consent of the
Purchaser, propose any resolution (other than the Special
Resolution) at any shareholders' meeting to disapply the pre-emption
provisions set out in section 89 of the Act other
than any such disapplication ("a Permitted Disapplication")
which relates only to the period until the expiry of the next
following Annual General Meeting of the Company (or, if
sooner, the expiry of 15 months after the date of passing of
such special resolution) and is limited to the allotment of
equity securities in connection with a rights issue (as
defined in the Notice of the 1996 Annual General Meeting of
the Company) and/or the allotment (otherwise than in
connection with a rights issue) of equity securities up to an
aggregate nominal amount which does not exceed 5% of the
aggregate nominal amount of the issued ordinary share capital
of the Company on the date such special resolution is passed.
37. TERMINATION OF RESTRICTIONS
Notwithstanding any other provision in this Agreement, (a) the
restrictions applicable to the Purchaser in Clauses 8.1, 8.5 and
9 shall terminate on the earliest to occur of (i) the failure to
elect any Directors designated by the Purchaser as a result of a
breach of Clause 6.3 of this Agreement by the Company or (ii) the
breach by David Crossland of the Shareholders' Agreement or (iii)
an order being made or resolution passed, or a petition being
presented (which is not discharged dismissed or withdrawn within
30 days after its presentation and in respect of which the Company
fails to deliver to the Purchaser within such 30 day period an
opinion of Queens Counsel to the effect that the same is frivolous
or vexatious or represents an abuse of process), for the winding
up of the Company or the appointment of a provisional liquidator
to the Company or for an administration order in respect of the
Company, or a receiver being appointed of the whole or part of the
Company's business or assets or a voluntary arrangement being
proposed under section 1 of the Insolvency Act 1986 or section 425
of the Act in respect of the Company, and (b) the restrictions
applicable to the Purchaser in Clauses 8.1 and 9 shall terminate
on the earlier to occur of (i) David Crossland ceasing to be
"Chief Executive" or "Executive Chairman" of the Company or (ii)
one or more Involuntary Transfers occurring in which more than 1%
of the issued Ordinary Shares are transferred.
38. SECURITIES PROVISIONS
38.1 All of the provisions of Clauses 8, 9, 10 and 11 of this
Agreement shall apply to all of the Shares now owned or which
may be issued or transferred hereafter to the Purchaser
whether in consequence of the Subscription, the Partial
Offers or the Share Purchase or in consequence of any
additional issuance, rights offering, purchase, exchange or
reclassification of any of the Shares (including without
limitation, upon the exercise of any option or warrant),
corporate reorganization, or any other form of
recapitalisation, consolidation, merger, share split or share
dividend, or which are acquired by the Purchaser in any other
manner.
38.2 A copy of this Agreement shall be filed with the secretary of
the Company and kept with the records of the Company. Each
certificate representing Shares now held or hereafter
acquired by the Purchaser shall, for so long as this
Agreement is effective, bear a legend substantially in the
following form:
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER") OF ANY OF THE SHARES REPRESENTED
BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE
SUBSCRIPTION AGREEMENT, DATED FEBRUARY 21, 1996 (THE "SUBSCRIPTION
AGREEMENT"), AMONG CARNIVAL CORPORATION AND AIRTOURS PLC (THE
"COMPANY"), A COPY OF WHICH MAY BE INSPECTED AT THE COMPANY'S
REGISTERED OFFICE.
39. ANNOUNCEMENTS
39.1 Subject to Clause 12.2, neither party may, before or after
Completion, make or send a public announcement, communication
or circular concerning the transactions referred to in this
Agreement unless it has first obtained the written consent of
the other parties, which may not be unreasonably withheld or
delayed.
39.2 Clause 12.1 does not apply to:
39.2.1 a public announcement, communication or circular required
by law or a regulation of a stock exchange, if the party
required to make or send it has, if practicable, first
consulted with and given due consideration to the
reasonable requirements of the other party; or
39.2.2 a public announcement communication or circular which
does no more than repeat information previously published
by either of the parties without contravention of clause
12.1.
40. CONFIDENTIAL INFORMATION
40.1 Before and after Completion the Purchaser and the Company
shall:
40.1.1 not use or disclose to a person Confidential Information
regarding the other which it has or acquires; and
40.1.2 make every effort to prevent the use or disclosure of
Confidential Information belonging to the other.
40.2 The Purchaser and the Company shall each ensure that their
respective subsidiaries and subsidiary undertakings comply
with Clause 13.1.
40.3 Clause 13.1 does not apply to:
40.3.1 disclosure of Confidential Information to a director,
officer or employee of the Purchaser or the Company whose
function requires him to have the Confidential
Information but only on terms that clause 13.1 applies to
use (other than solely in the performance of that
function which shall not operate to the detriment of the
party to which the Confidential Information relates) or
disclosure by the Director, Officer or employee and that
the party making such disclosure shall be responsible to
the other for any failure by such director, officer or
employee to comply with clause 13.1;
40.3.2 disclosure of Confidential Information required to be
disclosed by law or the London Stock Exchange, the New
York Stock Exchange, Inc. or any other Regulatory
Authority;
40.3.3 disclosure of Confidential Information to an adviser for
the purpose of advising the Purchaser or the Company but
only on terms that Clause 13.1 applies to use or
disclosure by the adviser and that the party making such
disclosure shall be responsible to the other party for
any failure by such adviser to comply with clause 13.1;
40.3.4 Confidential Information in relation to one party which
becomes publicly known except by a breach by the other
party of Clause 13.1 or 13.2.
40.4 For the purpose of this clause Confidential Information means
all information not publicly known used in or otherwise
relating to the business, customers or financial or other
affairs, of either the Purchaser or the Company, including,
without limitation, information relating to:-
(a) the marketing of goods or services including, without
limitation, customer names and lists and other details of
customers, sales targets, sales statistics, market share
statistics, prices, market research reports and surveys, and
advertising or other promotional materials; or
(b) future projects, business development or planning, commercial
relationships and negotiations.
40.5 Without prejudice to any other rights or remedies that either
party may have, each party acknowledges and agrees that:
(a) the other party would be irreparably harmed by a breach of
any of the provisions of this clause 13;
(b) damages would not be an adequate remedy for any such breach;
(c) the other party shall be entitled to the remedies of
injunction, specific performance and other equitable relief
(and corresponding remedies in jurisdictions outside the
United Kingdom) for any threatened or actual breach of the
provisions of this clause 13;
(d) no proof of special damages shall be necessary for the
enforcement of this clause 13; and
(e) each of the obligations under this clause 13 is severable and
distinct and to the extent that any particular provision is
held to be unenforceable all the remaining provisions shall
continue to apply.
40.6 Forthwith upon this Agreement becoming unconditional the
Confidentiality Agreement dated 10 January 1996 between the
Company and the Purchaser shall automatically cease and
determine.
41. ASSIGNMENT
Without the consent of the other, neither the Company nor the
Purchaser may assign or transfer or purport to assign or transfer
a right or obligation under this Agreement other than with respect
to the Purchaser to any Wholly Owned Subsidiary or to any person
who acquires all or substantially all of the assets of the
Purchaser on the basis that any such assignee which in a Wholly
Owned Subsidiary will re-assign the right or obligation to the
Purchaser or another Permitted Transferee on ceasing to be a
Wholly Owned Subsidiary.
42. NON COMPETE
42.1 The Purchaser hereby covenants to the Company that, during
the Relevant Period, neither the Purchaser nor any other
member from time to time of the Purchaser's Group will,
without the prior written consent of the Company (and other
than through its interest in the Company), either on its own
behalf or jointly with any other Person or on behalf of any
other Person or as manager, consultant, principal or agent
for any other Person, directly or indirectly carry on or be
concerned or engaged in a "Competing Business", which for the
purposes of this Clause 15 shall mean a business involved in
supplying (whether as a tour operator or retail travel agent
or otherwise howsoever) within the United Kingdom, Sweden,
Denmark, Norway or Finland Air Inclusive Tours in respect of
land-based (or substantially land-based) holidays in the
Restricted Area. For the avoidance of doubt, it is agreed
that any business involved in operating a charter airline (or
airline charter services) providing flights from the United
Kingdom, Sweden, Denmark, Norway or Finland for holidaymakers
travelling to land based (or substantially land-based)
holidays in the Restricted Area shall constitute a Competing
Business for the purposes of this Clause 15.1.
42.2 For the purposes of Clause 15.1:
"Relevant Period" shall mean the period from the date upon which
this Agreement becomes unconditional in all respects until the
date which is one year after the date upon which there ceases to
be on the board of directors of the Company an individual who has
been nominated by the Purchaser pursuant to Clause 6.
"Restricted Area" shall mean:
(a) any country bordering on the Mediterranean Sea;
(b) the Canary Islands; and
(c) any resort or other location which is served by an airport
which is within 7 hours (sub-sonic) flying time from any
airport in the United Kingdom, Sweden, Denmark, Norway or
Finland (provided that such resort or other location is not
in North America or South America or within 1,000 miles of
the coast of North America or South America).
"land based (or substantially land based) holidays" shall mean
holidays where the holiday accommodation is either wholly or
principally land based, but shall not, however, include any
holiday where the provision of land based accommodation is related
to a cruise.
42.3 Nothing in Clause 15.1 shall prevent the Purchaser and any
other member of the Purchaser Group from:
(a) owning (as an aggregate within the Purchaser Group) whether
directly or indirectly not more than 5% of any class of the
issued share capital or issued capital stock of any Person
where such class of share capital or capital stock is dealt
in on a recognised stock exchange or on an over the counter
market or
(b) acquiring:
(i) the undertaking of any Person where such undertaking
includes a Competing Business; or
(ii) the shares of any Person ("Acquired Company") which
itself or through any subsidiary or subsidiary
undertaking carries on or is engaged in a Competing
Business.
Provided that:
(A) (i) the Competing Business is not the principal
activity of such undertaking or Acquired Company
at the date of acquisition and the turnover
derived from such Competing Business is not (by
reference to the latest available audited
accounts of the relevant company or corporation)
more than 25% of the turnover of the relevant
undertaking or Acquired Company (Provided that
the exception from Clause 15.1 comprised in this
Clause 15.3(b)(A) shall not apply in the event
the Purchaser or a member of the Purchaser Group
acquires the undertaking of any Person or the
shares of any Person and sells all or
substantially all of the assets of such
undertaking or Person (other than the Competing
Business) within 180 days after making such
acquisition; and
(ii) if the Purchaser intends to sell all or any
portion of the Competing Business the
Purchaser shall, prior to initiating or
entertaining any discussions with any other
party with regard to the sale of the whole
or any significant part of such Competing
Business notify the Company of such
proposed disposal, and at the Company's
request following such notification,
negotiate in good faith with the Company in
relation to a sale to the Company of the
whole or (at the Company's election) some
part of such Competing Business provided
however that the Purchaser shall not be
obliged to sell all or any portion of the
Competing Business to the Company or any
other Person by virtue of this Clause 15.3
(b); or
(B) the turnover from such Competing Business is not (by
reference to the latest available audited accounts
of the relevant Person) more than 1% of the turnover
of the relevant undertaking or Acquired Company and
the relevant Person has not, since the expiry of the
period to which such audited accounts relate, been
party to any acquisition or reorganisation, or
fundamental change to its business, such that at the
time of the Purchaser's acquisition such percentage
will have increased to more than 1%.
42.4 The Purchaser agrees with the Company that the provisions of
Clause 15.1 are reasonable in the context of the Subscription
and the Offers and necessary for the protection of the
Company and the Purchaser agrees that, having regard to that
fact, such provisions do not work harshly on it or on other
members of the Purchaser Group.
42.5 While the restriction contained in Clause 15.1 is considered
by the parties to be reasonable in all the circumstances, it
is agreed that if such restriction shall be adjudged to go
beyond what is reasonable in all the circumstances for the
protection of the interests of the Company, but would be
adjudged reasonable if part or parts of wording thereof were
deleted or the period thereof were reduced or the range of
businesses or areas dealt with thereby were reduced in scope,
such restriction shall apply with such modifications as may
be necessary to make it effective.
42.6 No provision by virtue of which this Agreement (or any
agreement or arrangement of which this Agreement forms part)
is subject to registration under the Restrictive Trade
Practices Act 1976 shall take effect until the day after the
date on which particulars required by that Act to be
furnished to the Director General of Fair Trading in respect
of this Agreement (or of the agreement or arrangement of
which it forms part) have been furnished to him in accordance
with that Act.
43. NOTICES
43.1 A notice or other communication under or in connection with
this Agreement shall be in writing and shall be delivered
personally or sent by first class post pre-paid recorded
delivery (or recorded delivery air mail if overseas) or by
fax to the party due to receive the notice or communication
sent during normal business hours in the jurisdiction of the
sender (with the sender receiving confirmation of receipt) at
its address (or fax number) set out in this Agreement or
another address (or fax number) specified by that party by
written notice to the other. A notice or other communication
is deemed given when actually received as evidenced by the
recorded delivery or the confirmation of receipt of fax.
43.2 The fax numbers for the purposes of this clause 16 are as
follows:
(i) the Purchaser:
Fax no: (305) 471-4700
(ii) the Company:
Fax no: (0161) 232-6524
44. GOVERNING LAW AND JURISDICTION
44.1 This Agreement is governed by and shall be construed in
accordance with English law.
44.2 The Courts of England shall have exclusive jurisdiction to
hear and decide any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection
with this Agreement (respectively, "Proceedings" and
"Disputes") and, for these purposes, each party irrevocably
submits to the exclusive jurisdiction of the courts of
England.
44.3 Each party irrevocably waives any objection which it might at
any time have to the courts of England being nominated as the
forum to hear and decide any Proceedings and to settle any
Disputes and agrees not to claim that the courts of England
are not a convenient or appropriate forum.
44.4 Process by which any proceedings are begun in England may be
served on the Purchaser by being personally delivered to
Clifford Chance, 200 Aldersgate Street, London EC1 4JJ marked
for the attention of Simon G.F. Burgess. Nothing contained
in this Clause 17.4 affects the right to serve process in
another manner permitted by law.
45. COUNTERPARTS
This Agreement may be executed in any number of counterparts each
of which when executed and delivered is an original, but all the
counterparts together constitute the same document.
AS WITNESS the hands of the parties hereto, or their duly authorised
representatives, the day and year first above written.
SCHEDULE 1
THE CONDITIONS
1. The posting on or before 21 March 1996, or such later date as
the Panel on Takeovers and Mergers may agree, of the Offer
Document and Notice convening the Extraordinary General
Meeting of the Company at which the Special Resolution is to
be proposed.
2. The passing of the Special Resolution at an Extraordinary
General Meeting of the Company or at any adjournment thereof;
3. The Subscription Shares being admitted to the Official List
of the London Stock Exchange and such admission becoming
effective in accordance with paragraph 7.1 of the Listing
Rules.
4. The shares of Class A Common Stock issuable to the Company's
shareholders pursuant to the Offers and the Share Purchase
shall have been approved for listing on the New York Stock
Exchange, Inc., subject to official notice of issuance.
5. It having been established in terms reasonably satisfactory
to the Purchaser that the proposed acquisition of Ordinary
Shares and Preference Shares in the Company pursuant to the
Offers and the Share Purchase and the Subscription for the
Subscription Shares by the Purchaser Group, or any matter
arising therefrom, will not be referred to the Monopolies and
Mergers Commission.
6. All necessary filings having been made in connection with the
Offers and the Subscription and the Share Purchase and all
authorisations, orders, grants, recognitions, confirmations,
consents, clearances, licences, permissions, exemptions and
approvals necessary for or in respect of the Offers, the
Subscription or the proposed acquisition of any shares in the
Company by the Purchaser Group being obtained on terms and in
a form reasonably satisfactory to the Purchaser from
appropriate governments, governmental, quasi-governmental,
supranational, statutory or regulatory bodies, trade
agencies, professional bodies, associations, institutions,
environmental bodies and courts, and such authorisations,
orders, grants, recognitions, confirmations, consents,
clearances, licences, permissions, exemptions and approvals
remaining in full force and effect at the time at which this
Agreement becomes otherwise unconditional in all respects and
no notice of any intention to revoke, suspend, restrict,
modify or not renew any of the same having been received by
the Purchaser or the Company and all necessary filings having
been made and all waiting periods under any applicable
legislation and regulations in any jurisdiction having
expired or been terminated, in each case as may be necessary
in connection with the Offers, the Subscription and the Share
Purchase under the laws and regulations of any jurisdiction
and all necessary statutory or regulatory obligations in any
jurisdiction having been complied with.
7. Assurances satisfactory to both the Purchaser and the Company
being received from the United Kingdom Civil Aviation
Authority and the Danish Civil Aviation Authority that the
certificates, licences, approvals, arrangements and consents
including, without limitation, the Air Transport Licences and
the Air Operator's Certificates of any member of the Company
Group will not be adversely affected by the Offers the
Subscription or the Share Purchase.
8. The Undertakings remaining in full force and effect and the
obligations of Mr. D. Crossland and Mr. T. Trickett pursuant
to paragraphs 4.1 to 4.4 thereof not having been terminated
pursuant to paragraph 4.5 thereof.
SCHEDULE 2
THE WARRANTIES
1. OFFER DOCUMENT
1.1 Each statement of fact contained in the Offer Document or the
Listing Particulars concerning or relating to the Company
Group or its Directors will be true and accurate in all
material respects and not misleading. Each forecast,
estimate and expression of opinion, intention or expectation
contained in the Offer Document or the Listing Particulars
concerning the Company Group or its Directors will be
honestly held, fairly based and be made after all reasonable
enquiry and consideration.
1.2 No information will be omitted from the Offer Document or the
Listing Particulars which might make a statement of fact,
forecast, estimate or expression of opinion, intention or
expectation in the Offer Document or the Listing Particulars
concerning or relating to the Company Group or its Directors
untrue or inaccurate in any material respect or misleading or
which, in the context of the Subscription, the Offers and the
Share Purchase, is material for disclosure in the Offer
Document or the Listing Particulars.
2. ACCOUNTS
The audited consolidated balance sheet of the Company as at 30
September 1995 and the audited consolidated profit and loss
account and cash flow statement of the Company for the financial
year ended on such date (including the notes thereon) (such
balance sheet, profit and loss account and cash flow statement and
notes being the "Accounts") as set out in the Accounts give a true
and fair view of the state of affairs of the Company and its
subsidiaries at such date and the profits and cash flows of the
Company and its subsidiaries for the financial year ended at that
date and were prepared in accordance with applicable United
Kingdom accounting standards and under the historical cost
convention and in accordance with the accounting policies stated
therein consistently applied with the audited consolidated
accounts of the Company for the two preceding financial years and
the Accounts comply with the applicable provisions of the Act.
3. MATERIAL ADVERSE CHANGE
Since 30 September 1995 until the date hereof, taking due account
of the normal seasonal nature of the business of the Company and
its subsidiaries there has been no material adverse change in the
financial or trading position of the Company and its subsidiaries
(taken as a whole).
SCHEDULE 3
PROVISIONS FOR THE PROTECTION OF THE COMPANY
1. Remedies
1.1 After Completion the Purchasers rights for breach of the
Warranties shall only lie in damages and it shall not be
entitled to rescind or repudiate this Agreement.
1.2 Where the matter or default giving rise to a breach of any
Warranty is capable of remedy, the breach shall not entitle
the Purchaser to damages or other compensation unless written
notice of the breach is given to the Company and the matter
or default is not remedied to the reasonable satisfaction of
the Purchaser within 30 days after the date on which such
notice is served. This right to remedy shall not apply prior
to Completion.
2. Exclusion of Certain Claims
2.1 No claim shall be made by the Purchaser against the Company
and the Company shall not have any liability to the Purchaser
under the Warranties:
(a) in respect of any matter or thing fairly disclosed in the
Disclosure Information;
(b) in respect of any matter appearing on the files of the
Company maintained by the Registrar of Companies in England
and Wales at Companies House as the same appeared on 12
February 1996;
(c) in respect of any liability to the extent that it occurs as
a result of:
(i) any legislation not in force at the date hereof or any
change of law or administrative practice having
retrospective effect which comes into force after the
date hereof; or
(ii) any increase hereafter in the rates of taxation in
force at the date hereof;
(d) in respect of a liability which is contingent only unless and
until such contingent liability becomes an actual liability
and is due and payable, but this paragraph 2.1(d) shall not
operate to avoid a claim made with reasonable particularity
in respect of a contingent liability within the applicable
time limits specified in paragraph 3 of this Schedule; or
(e) in respect of any matter referred to in the Press Release.
3. Time Limits
3.1 No claim shall be brought by the Purchaser for breach of any
of the Warranties unless notice in writing of such claim
(specifying in reasonable detail the event, matter or default
which gives rise to the claim and, if practicable, an
estimate of the amount claimed) has been given on or before
the date falling 30 days after the date of publication of the
report and accounts of the Company for its financial year
ending 30 September 1996.
3.2 Any such claim that may have been made shall (if it has not
been previously satisfied, settled or withdrawn) be deemed to
have been waived or withdrawn on the expiration of 18 months
after the date it was made unless court proceedings in
respect of it shall then have been issued and served on the
Company (except that if such claim is based on a contingent
liability as described paragraph 2.1(d), then the Purchaser
shall not be obligated to commence court proceedings within
such 18 month period if such proceedings may not be commenced
as a matter of English law) but shall be obligated to issue
and serve on the Company Court proceedings in respect of such
claim within 18 months after the relevant liability ceases to
be a contingent liability.
4. Thresholds
4.1 The Company shall not have any liability in respect of any
claim made under or in respect of any of the Warranties
unless the amount of that claim when added to the aggregate
amount of all other claims under or in respect of the
Warranties exceeds L15,000,000 (in which case the Purchaser
shall have a claim for the full amount of such claims and not
only the excess over L15,000,000).
4.2 The total liability of the Company in respect of all claims
under or in respect of the Warranties shall not exceed
L100,000,000.
4.3 If any relevant claim is made, or any relevant liability of
the Company determined, in a currency other than pounds
sterling, for the purposes of applying the provisions of
paragraphs 4.1 and 4.2 of this Schedule such claim/liability
shall be construed as a claim/liability for the equivalent
amount in pounds sterling, calculated by reference to the
rate of exchange prevailing on, for the purposes of paragraph
4.1 the date the claim is made or, for the purposes of
paragraph 4.2 the date upon which the liability is discharged
by the Company.
5. Allowance Against Claims
If the Company shall have made any payment in respect of a claim
under the Warranties and any member of the Company Group shall
thereafter receive a quantifiable monetary benefit, refund or
payment from a third party which is directly referable to the
Warranty claim, the Purchaser shall forthwith repay to the Company
a sum (not in excess of the Warranty payment received by the
Purchaser from the Company) corresponding to such net benefit,
refund or payment from a third party as the case may be provided
that any such repayment shall have no effect on any previous or
future application of the provisions of Clause 4.1 of this
Schedule 3.
Signed by )
for and on behalf of ) /s/ Howard S. Frank
CARNIVAL CORPORATION )
Signed by )
for and on behalf of ) /s/ H. H. Collinson
AIRTOURS PLC )