[Proposed Form]
THIRD AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CARNIVAL CORPORATION
We the undersigned, Micky Arison, Chairman of the Board of Directors
and Chief Executive Officer, and Arnaldo Perez, Senior Vice President, General
Counsel and Secretary, of Carnival Corporation, a corporation organized and
existing in accordance with the laws of the Republic of Panama (the
"Corporation"), do hereby certify that the Articles of Incorporation of said
corporation are hereby amended and restated as follows:
ARTICLE I
Corporate Name
The name of the Corporation is: "Carnival Corporation."
ARTICLE II
Duration
The duration of the Corporation shall be perpetual, but it may
previously be dissolved pursuant to Panamanian law.
ARTICLE III
Corporation Purposes
The purposes of the Corporation are:
(a) To make, purchase, barter, charter, acquire dominion upon or use
of, operate as owner, charteror or operator, to manage, equip and fit out all
kinds of ships and vessels of all types and kinds of propelling systems.
(b) To make all kinds of buildings and structures related to any kind
of legitimate maritime commercial business, merchandise warehousing, shipping
and transportation.
(c) To act as shipbroker, customs and maritime insurance broker, and
to administer the properties and assets and investments that maritime trade and
shipowners' business and ship exploitation may require.
(d) To act as principal and agent in all negotiations related to
maritime trade to such extent as the purposes of this Corporation may permit it.
(e) To solicit from the Government of the Republic of Panama or any
other government where it may be necessary and through such proceedings as may
be required by law, navigation licenses for ships and permits to enroll crewmen
for, and port clearance of, the ships in care of the Corporation.
(f) To perform transactions through negotiable instruments and real
estate related to maritime trade and shipowners' business and exploitation of
ships.
(g) To deal in patents and improvements on patented methods related to
the business of maritime trade.
(h) To purchase and sell and deal in general with the shares of its
own capital stock pursuant to instructions from the Board of Directors. To
acquire, purchase, guarantee, hold, sell, assign, transfer, mortgage, pledge or
otherwise dispose of, deal in shares of the capital stock of, or bonds,
securities or other certificates of indebtedness created by other corporations.
(i) The Corporation shall have the power without any requirement to
obtain prior shareholder approval to give guarantees of the indebtedness or
obligations of related or unrelated persons deemed by the Board of Directors to
be in furtherance of its corporate purpose and to secure any such guarantee or
any other obligations by the creation of any security interest in all or any
part of its property or any interest therein (and for these purposes, the
corporate purposes of the Corporation shall include any and all lawful acts and
activities for which corporations may be organized under the Corporation Law),
and it shall not be necessary to seek or obtain the authorization of the
shareholders of the Corporation for the giving of any guarantee, indemnity or
security in furtherance of any of its corporate purposes.
(j) To purchase, sell, lease, mortgage, set up easements and
encumbrances upon real estate and in general upon all kinds of properties
related to the business of the Corporation.
(k) To sell, mortgage, encumber or otherwise charge its assets and to
perform any and all kinds of legitimate commercial transactions and any other
that may be permitted in the future pursuant to Panamanian laws.
(l) To borrow money from any persons, firms, banks or corporations as
may be necessary for its business and to guarantee such loans as the law may
permit and to loan money secured or unsecured to any persons, firms or
corporations as the law may permit and in general to engage in any legitimate
commercial undertaking in any country.
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(m) To engage in the general business of travel and tour services,
both domestic and foreign; to dispense travel and tour information and to act as
agent for all transportation companies, including without limitation airline
companies, passenger cruise line companies, steamship companies, railroad
companies, bus companies, car rental companies and any other mode of travel or
transportation or touring companies, both local and foreign; to engage in the
preparation of travel and tour itineraries, including without limitation hotel
and motel accommodations and sightseeing; and, in general, to engage in the
business of all forms and types of travel services.
(n) To dispense travel and tour counseling services, sell railroad,
airline, passenger cruise line, steamship and bus transportation; to sell
accommodations for hotels, resorts, sightseeing and feature attractions
throughout the United States, Canada, Mexico, Europe and every country
throughout the world; to create, plan, sell and carry through escorted vacation
tours; to own, operate, lease or otherwise acquire such real and personal
property suitable, useful or necessary in connection with any of the objects
aforementioned; to enter into, make, perform and carry out contracts of every
kind in connection with the sale and distribution of the aforementioned items or
services; to acquire, use, own, lease and dispose of trademarks, copyrights and
licenses.
(o) To acquire, hold, use, sell, assign, lease, grant licenses in
respect of, mortgage or otherwise dispose of letters patent of the United States
or any foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks, service marks and trade
names relating or useful in connection with any business of the Corporation.
(p) To carry on the business of hotel, resort, casino, restaurant,
refreshment room and lodging-housekeepers, caterers for public amusements
generally, hairdressers, barbers, perfumers, proprietors, laundries, reading,
writing and newspaper room, libraries, places of amusements, recreation and
entertainment of all kinds, sport, theatrical and musical box office
proprietors, entrepreneurs and general agents, and any other business which can
be conveniently carried on in connection therewith.
(q) To take all such actions as the Board of Directors shall determine
are necessary or desirable to carry out the transactions contemplated by the
Equalization Agreement, the SVC Special Voting Deed and the Carnival Deed Poll
Guarantee.
(r) To engage in, carry on and conduct any lawful act or activity for
which corporations may be organized under the Corporation Law.
The foregoing clauses shall be construed both as objects and powers,
and it is hereby expressly provided that the foregoing enumeration of specific
powers shall not limit or restrict in any manner the powers of the Corporation,
and are in furtherance of, and in addition to, and not in limitation of the
general powers conferred by the laws of the Republic of Panama.
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ARTICLE IV
Registered Agent
The Registered Agent of the Corporation in Panama City, until the
Board of Directors may provide otherwise, shall be the law firm of Tapia,
Linares y Alfaro, Plaza 2000, Calle 50, Apartado 7412, Panama 5, Republic of
Panama.
ARTICLE V
Capitalization
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is . registered shares comprised of .
shares of nominative common stock, par value US$.01 per share ("Common Stock"),
.. shares of preferred stock, par value US$.01 per share ("Preferred Stock"), one
(1) share of special voting stock, par value US$.01 per share (such share of
special voting stock, the "Carnival Special Voting Share"), and one (1) share of
special stock, par value US$.01 per share (such share of special stock, the
"Equalization Share"). Subject to the provisions of these Articles of
Incorporation and except as otherwise provided by law, the stock of the
Corporation, regardless of class, may be issued for such consideration and for
such corporate purposes as the Board of Directors may from time to time
determine.
The preferences, limitations and relative rights of the Common Stock,
the Preferred Stock and the Carnival Special Voting Share are as follows:
(a) Common Stock.
(1) All shares of the Common Stock shall have the same rights,
powers, preferences and privileges and shall rank equally, share ratably and be
identical in all respects as to all matters, including rights upon liquidation
and distribution of the assets of the Corporation and in respect of rights to
dividends and other distributions, when and as declared. The holders of shares
of Common Stock shall be entitled in accordance with the Equalization Agreement,
to the exclusion of the holders of shares of Preferred Stock of any and all
series, to receive such dividends as from time to time may be declared by the
Board of Directors, except as otherwise provided by the resolution or
resolutions providing for the issue of any series of shares of Preferred Stock.
In the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, after payment shall have been made to the
holders of shares of Preferred Stock of the full amount to which they shall be
entitled pursuant to the resolution or resolutions providing for the issue of
any series of shares of Preferred Stock, the holders of shares of Common Stock
shall be entitled, to the exclusion of the holders of shares of Preferred Stock
of any and all series, to share, ratably according to the number of shares of
Common Stock held by them, in all remaining assets of the Corporation available
for distribution to its stockholders.
(2) Subject to the provisions of any applicable law, these
Articles of Incorporation or of the By-laws, with respect to the closing of the
transfer books or the fixing of a record date for the determination of
stockholders entitled to vote and except as
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otherwise provided by law or by the resolution or resolutions providing for the
issue of any series of shares of Preferred Stock, the holders of outstanding
shares of Common Stock shall exclusively possess voting power for the election
of directors and for all other purposes, each holder of record of shares of
Common Stock being entitled to one vote for each share of Common Stock standing
in his or her name on the books of the Corporation.
(b) Preferred Stock. The Board of Directors may authorize by
resolution or resolutions from time to time the issuance of one or more classes
or series of Preferred Stock and fix the designations, powers, preferences and
relative, participating, optional or other rights (including, without
limitation, rights respecting conversion, exchange or redemption) and the
qualifications, limitations or other restrictions thereof (including
restrictions respecting conversion, exchange or redemption) with respect to each
such class or series of Preferred Stock, and the number of shares constituting
each such class or series. Unless otherwise provided in any such resolution or
resolutions, the number of shares of Preferred Stock of any such series to which
such resolution or resolutions apply may be increased (but not above the total
number of authorized shares of the class) or decreased (but not below the number
of shares thereof then outstanding) by a resolution or resolutions likewise
adopted by the Board of Directors, and the Board of Directors may otherwise
increase or decrease the number of shares of any such class or series to the
extent permitted by the Corporation Law. Any of the voting powers, designations,
preferences, rights and qualifications, limitations or restrictions of any such
series of Preferred Stock may be made dependent upon facts ascertainable outside
of the resolution or resolutions providing for the issue of such Preferred Stock
adopted by the Board pursuant to the authority vested in it by this Article V,
provided that the manner in which such facts shall operate upon the voting
powers, designations, preferences, rights and qualifications, limitations or
restrictions of such series of Preferred Stock is clearly and expressly set
forth in the resolution or resolutions providing for the issue of such Preferred
Stock. The term "facts" as used in the next preceding sentence shall have the
meaning given to it under Panamanian law. Shares of Preferred Stock of any
series that have been redeemed (whether through the operation of a sinking fund
or otherwise) or that if convertible or exchangeable, have been converted into
or exchanged for shares of any other class or classes shall have the status of
authorized and unissued shares of Preferred Stock of the same series and may be
reissued as a part of the series of which they were originally a part or may be
reclassified and reissued as part of a new series of shares of Preferred Stock
to be created by resolution or resolutions of the Board of Directors or as part
of any other series of shares of Preferred Stock, all subject to the conditions
or restrictions on issuance set forth in the resolution or resolutions adopted
by the Board of Directors providing for the issue of any series of shares of
Preferred Stock.
(c) Carnival Special Voting Share.
(1) The Carnival Special Voting Share shall confer on the holder
of such share the relevant rights and obligations set out in these Articles of
Incorporation and the By-Laws. The Carnival Special Voting Share shall cease to
confer any right to attend or vote at any meeting of the shareholders of the
Corporation if either the
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Equalization Agreement is terminated or if a resolution to terminate the SVC
Special Voting Deed is approved as a Class Rights Action.
(2) The Carnival Special Voting Share shall have the following
voting rights:
(A) In relation to a resolution of the Corporation to approve a
Joint Electorate Action at any meeting of the shareholders of the
Corporation, the Carnival Special Voting Share shall carry:
(i) such number of votes in favor of the resolution as
were cast in favor of the Equivalent Resolution at the Parallel
Shareholder Meeting of P&O Princess by holders of P&O Princess
Ordinary Shares and Other Voting Shares of P&O Princess;
(ii) such number of votes against the resolution as were
cast against the Equivalent Resolution at the Parallel Shareholder
Meeting of P&O Princess by holders of P&O Princess Ordinary Shares and
Other Voting Shares of P&O Princess; and
(iii) such number of abstentions as were recorded as
abstentions from the Equivalent Resolution at the Parallel Shareholder
Meeting of P&O Princess by holders of P&O Princess Ordinary Shares and
Other Voting Shares of P&O Princess;
in each case multiplied by the Equalization Fraction in effect at the time
such meeting of the shareholders of the Corporation is held and in each
case rounded up to the nearest whole number, such votes to be cast by the
holder of the Carnival Special Voting Share in accordance with the above
provisions.
(B) In relation to a resolution of the Corporation to approve a
Class Rights Action at any meeting of the shareholders of the Corporation,
the Carnival Special Voting Share shall carry:
(i) if the Equivalent Resolution is approved by the
requisite majority (as determined in accordance with the P&O Princess
Articles and Applicable Regulations) of the holders of P&O Princess
Ordinary Shares and Other Voting Shares of P&O Princess at the
Parallel Shareholder Meeting of P&O Princess, no votes; and
(ii) if the Equivalent Resolution is not approved by the
requisite majority (as determined in accordance with the P&O Princess
Articles and Applicable Regulations) of the holders of P&O Princess
Ordinary Shares and Other Voting Shares of P&O Princess at the
Parallel Shareholder Meeting of P&O Princess, (x) if the resolution
needs to be passed by a Majority Resolution, then the Carnival Special
Voting Share shall vote to cast such number of votes, representing the
largest whole percentage that is less than the percentage of the
number of votes as would
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be necessary to defeat a Majority Resolution if the total votes
capable of being cast by the outstanding Carnival Common Stock and
Other Voting Shares entitled to vote pursuant to Applicable
Regulations and/or the Carnival Articles and By-Laws (including the
Carnival Special Voting Share) were cast in favour of the resolution
at the meeting of the Corporation's shareholders; and (y) if the
resolution needs to be passed by a Supermajority Resolution, then the
Carnival Special Voting Share shall vote to cast such number of votes,
representing the largest whole percentage that is less than the
percentage of the number of votes as would be necessary to defeat a
Supermajority Resolution if the total votes capable of being cast by
the outstanding Carnival Common Stock and Other Voting Shares of
Carnival that are entitled to vote pursuant to Applicable Regulations
and/or the Carnival Articles and By-Laws (including the Carnival
Special Voting Share) were cast in favour of the resolution at the
meeting.
(C) Except as set forth above, the Carnival Special Voting Share
shall not be entitled to vote on any matter submitted to the shareholders
of the Corporation.
(3) The rights and obligations attaching to the Carnival Special
Voting Share may be amended or modified by a resolution approved as a Class
Rights Action; provided that where the proposed amendment or modification
increases the obligations of the holder of the Carnival Special Voting Share,
such amendment or modification shall also require the consent of the holder of
the Carnival Special Voting Share.
(4) Notwithstanding anything to the contrary in these Articles of
Incorporation, the By-Laws or any other agreement, under no circumstances shall
the Carnival Special Voting Share be entitled to any rights upon Liquidation and
distribution of assets of the Corporation or rights with respect to dividends or
other Distributions by the Corporation to its shareholders.
(d) The Equalization Share. The Equalization Share shall:
(1) have no rights to receive notice of, attend or vote at any
meeting of the Corporation;
(2) have rights to dividends as declared and paid by the Board in
accordance with Article XVI; and
(3) in the event of a voluntary or involuntary Liquidation, rank
after all other holders of shares with respect to a Liquidation Distribution
paid in accordance with Article XVII.
(e) Disenfranchised Carnival Common Stock. All Carnival Common
Stock acquired by any member of the P&O Princess Group shall automatically
be converted on the day that such shares are registered in the name
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of or such member of the P&O Princess Group in the record of registered
shareholders of the Corporation into disenfranchised Carnival Common
Stock ("Disenfranchised Carnival Common Stock") which, save that the
rights attached to such stock shall not entitle the member holding such
stock:
(1) to attend or vote at any general meeting or class
meeting of the Corporation, unless at the relevant date the P&O Princess Group,
is interested in 90 per cent. or more of the Carnival Common Stock (including
for the purpose of such calculation the Disenfranchised Carnival Common Stock);
or
(2) to receive a Liquidation Distribution,
such Disenfranchised Carnival Common Stock shall otherwise rank pari
passu in all other respects with the Carnival Common Stock. Following the
Transfer of any Disenfranchised Carnival Common Stock from a member of the P&O
Princess Group to a person who is not a member of the Combined Group, such
Disenfranchised Carnival Common Stock shall automatically be converted on the
day that such shares are registered in the register of members of the
Corporation into Carnival Common Stock.
Article VI
No Preemptive Rights
No holder of shares shall have any right, preemptive or other,
to subscribe for or to purchase from the Corporation any of the shares of the
Corporation hereinafter issued or sold.
ARTICLE VII
Address of Incorporators
The name and mailing address of each signatory to the original
Articles of Incorporation and the number of shares which each such signatory
agreed to take care is as follows:
No. of Shares of
Name Post Office Address Common Stock Subscribed
- ----------------------- ------------------------- -----------------------
Mariano J. Oteiza No. 8 Aquilino de la 1
Guardia Street
Panama, R. of P.
Domingo Diaz A. No. 8 Aquilino de la 1
Guardia Street
Panama, R. of P.
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ARTICLE VIII
Board of Directors
(a) The Board of Directors shall consist of no less than three (3), and
no more than twenty-five (25) members. Within said minimum and maximum, the
number shall be set forth by resolution of the stockholders or by resolution of
the Board of Directors. The meetings of the Board of Directors will be held in
the Republic of Panama or in any other country, and any director can be
represented and vote by proxy or proxies at any and all directors' meetings. The
meetings may also be held by means of telephone conference, fax or any other
means of electronic communication, in which the participants have been in direct
contact. Likewise, the resolutions of the Board of Directors may be adopted by
minutes which are circulated for signature by the directors or their proxies in
different dates and places. The Board of Directors shall have absolute control
and full powers of administration on all the matters of the Corporation, being
it understood that the Board of Directors is empowered to contract loans or
financing in general, to grant guarantees with respect to its properties,
subsidiaries, its obligations and those of third parties, and to mortgage its
properties and assets, and to sell less than all or substantially all of the
assets of the Corporation without shareholder approval. Directors shall be
elected as provided in the By-Laws. All directors shall have equal standing and
have equal voting powers.
(b) Each director of the Corporation shall also consent to serve, and
be properly appointed, as a director of P&O Princess in order to qualify to
serve as a director of the Corporation. Directors may be of any nationality and
need not be residents or citizens of Republic of Panama or shareholders. No
corporation may be appointed or elected a director of the Corporation.
(c) The Board of Directors are authorized to operate and carry into
effect the Equalization Agreement, the SVC Special Voting Deed and the Carnival
Deed Poll Guarantee. Subject to Applicable Regulations, nothing done by any
director in good faith pursuant to such authority and obligations shall
constitute a breach of the fiduciary duties of such director to the Corporation
or its shareholders. In particular, the directors shall, in addition to their
duties to the Corporation, be entitled to have regard to interests of the
holders of the Carnival Common Stock and P&O Princess Ordinary Shares as if the
Corporation and P&O Princess were a single entity.
(d) At all meetings of the Board of Directors the presence, in person
or by proxy, of at least one-third of the total number of directors shall
constitute a quorum for the transaction of business except as may be otherwise
specifically provided by Applicable Regulations, the Articles of Incorporation
or By-Laws. The act of a simple majority of the directors present in person or
by proxy at any meeting at which there is a quorum shall be the act of the Board
of Directors, except as may be otherwise specifically provided by Applicable
Regulations, the Articles of Incorporation or By-Laws.
(e) Authority of the Board of Directors. The Board of Directors shall
have the authority to exercise all rights and powers granted to or vested in the
Board of
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Directors or the Corporation under Articles XII, XIII, XIV and XV and to take
any action as it deems necessary or advisable to give effect to the provisions
of Articles XII, XIII, XIV and XV, including the right and power to interpret
the provisions of Articles XII, XIII, XIV and XV and to make all determinations
deemed necessary or advisable to give effect to the provisions of Articles XII,
XIII, XIV and XV. Without limiting the generality of the foregoing, the
Corporation shall expressly have the right to effect or procure a transfer of
Carnival Common Stock (including Excess Shares and Combined Group Excess Shares)
as described in Articles XII, XIII, XIV and XV. In the case of ambiguity in the
application of any of the provisions of Articles XII, XIII, XIV and XV, the
Board of Directors shall, in its absolute discretion, have the power to
determine the application of such provisions with respect to any situation based
on the facts known to them, including, without limitation, any rulings,
regulations or waivers under, or amendments to, any Applicable Regulations or
that affect provisions of the City Code that are analogous to Articles XIV and
XV. All such actions, calculations, interpretations and determinations which are
done or made by the Board of Directors in good faith shall be final, conclusive
and binding on the Corporation and all other parties. No director shall be
liable for any act or omission pursuant to these Articles XII, XIII, XIV and XV
if such action was taken in good faith. Any one or more directors may act as the
attorney(s) of any holder of Carnival Common Stock (including any holder of
Excess Shares or Combined Group Excess Shares) with respect to the execution of
documents and other actions required to be taken for the sale or transfer of
Excess Shares pursuant to Article XIII or Combined Group Excess Shares pursuant
to Article XIV.
ARTICLE IX
Officers
The Board of Directors, as soon as possible after the annual
election of directors, may choose a Chairman of the Board, a Vice-Chairman of
the Board, a President, a Chief Executive Officer, a Chief Operating Officer, a
Secretary, a Treasurer, and one or more Vice Presidents, all of whom shall hold
their offices until their successors are chosen and qualify. More than one
office may be held by the same person. The Board of Directors may from time to
time choose such other officers and agents as are necessary, who shall hold
their offices for such terms as are determined by the Board of Directors. Any
officer or agent chosen by the Board of Directors may be removed at any time
with or without cause by the affirmative vote of a majority of the members of
the Board of Directors then in office. Until the Board of Directors provides
otherwise, the legal representative of the Corporation shall be the President
and, in his absence, the Corporation shall be represented by the Chairman of the
Board.
ARTICLE X
Amendments to Articles of Incorporation and By-Laws
(a) Subject to subsections (b) and (c) of this Article X, any
amendment to these Articles of Incorporation shall require approval as a Joint
Electorate Action;
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provided that no amendment to these Articles of Incorporation may be effected
unless a majority of all votes entitled to be cast with respect thereto
(including votes entitled to be cast by the Carnival Special Voting Share) have
been voted in favor of such amendment at a meeting of the shareholders of the
Corporation.
(b) Any amendment to the Carnival Entrenched Articles shall
require approval as a Class Rights Action; provided that no amendment to these
Articles of Incorporation may be effected unless a majority of all votes
entitled to be cast with respect thereto (including votes entitled to be cast by
the Carnival Special Voting Share) have been voted in favor of such amendment at
a meeting of the shareholders of the Corporation.
(c) Notwithstanding the foregoing, any amendment of these
Articles of Incorporation (1) to specify or change the location of the office or
registered agent of the Corporation, or (2) to make, revoke or change the
designation of a registered agent, or to specify or change the registered agent,
may be approved and effected by the Board of Directors without the approval of
the shareholders of the Corporation or the shareholders of P&O Princess.
(d) Any amendment to or repeal of the Carnival Entrenched
By-Laws shall require approval as a Class Rights Action.
(e) Any amendment to or repeal of any By-Law of the Corporation
other than any of the Carnival Entrenched By-Laws may be approved and effected
by the Board of Directors without the approval of the shareholders of the
Corporation or the shareholders of P&O Princess.
(f) Notwithstanding the provisions of this Article X, upon
completion of a Mandatory Exchange, the Articles of Incorporation and the
By-Laws shall be automatically amended without any further action of the
Corporation or the shareholders of the Corporation as set forth in Appendices I
and II hereto, respectively.
ARTICLE XI
Indemnification
(a) A director of the Corporation shall not be liable to the
Corporation, P&O Princess or their respective shareholders for monetary damages
for breach of fiduciary duty as a director.
(b) (1) Each person (and the heirs, executors or administrators
of such person) who was or is a party to or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was a director or an officer of the Corporation or P&O Princess or
is or was serving at the request of the Corporation or P&O Princess as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, shall be indemnified and held harmless by the Corporation
against expenses (including attorneys' fees), judgments, fines and amounts paid
in
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settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding to the fullest extent and in the manner set forth in
and permitted by the Corporation Law, and any other applicable law, as from time
to time in effect. The foregoing provisions of this Article XI shall be deemed
to be a contract between the Corporation and each director and officer who
serves in such capacity at any time while this Article XI and the relevant
provisions of the Corporation Law and other applicable law, if any, are in
effect.
(2) The Corporation may, by action of the Board of Directors,
provide indemnification to such of the employees and agents of the Corporation,
P&O Princess or any person who is or was serving at the request of the
Corporation or P&O Princess as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding to such extent and to such effect as the Board of Directors shall
determine to be appropriate and permitted by the Corporation Law, and any other
applicable law, as from time to time in effect.
(c) The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation or P&O Princess, or is or was serving at the request of
the Corporation or P&O Princess as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss incurred by such person in any such
capacity or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article XI or under the Corporation Law or any other
provision of law.
(d) The rights and authority conferred in this Article XI shall not
be exclusive of any other right which any person may otherwise have or hereafter
acquire.
(e) Neither the amendment nor repeal of this Article XI nor the
adoption or any provision of the Articles of Incorporation or the By-Laws of the
Corporation, nor, to the fullest extent permitted by the Corporation Law and any
other applicable law, any modification or repeal of law, shall affect any rights
or obligations then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore or thereafter
brought or threatened based in whole or in part upon any such state of facts.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article XI shall, unless otherwise provided when
authorized or ratified under subsection (b)(2) hereof, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
(g) A member of the Board of Directors, or a member of any committee
designated by the Board of Directors, shall, in the performance of his duties,
be fully
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protected in relying in good faith upon the records of the Corporation or P&O
Princess and upon such information, opinions, reports or statements presented to
the Corporation by any of the Corporation's or P&O Princess' officers or
employees, or committees of the Board of Directors, or by any other person as to
matters the member reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation. In discharging their duties, directors and
officers, when acting in good faith, may rely upon financial statements of the
Corporation or P&O Princess represented to them to be correct by the chief
financial officer or the controller or other officer of the Corporation or P&O
Princess having charge of its books or accounts, or stated in a written report
by an independent public or certified public account or firm of such accountants
fairly to reflect the financial condition of the Corporation or P&O Princess.
ARTICLE XII
Restrictions on Transfer
(a) Restriction of Transfers and Other Events. Except as
provided in section (g) hereof, from the Section 883 Amendment Date until the
Restriction Termination Date: (1) no Person (other than an Existing Holder)
shall Beneficially Own Shares in excess of the Ownership Limit; (2) any Transfer
that, if effective, would result in any Person (other than an Existing Holder)
Beneficially Owning Shares in excess of the Ownership Limit shall be void ab
initio as to the Transfer of that number of Shares which would be otherwise
Beneficially Owned by such Person in excess of the Ownership Limit and the
intended transferee shall acquire no rights in such Shares in excess of the
Ownership Limit; and (3) any Transfer of Shares that, if effective, would result
in the Corporation being "closely held" within the meaning of Section 883 of the
Code and the regulations promulgated thereunder shall be void ab initio as to
the Transfer of that number of Shares which would cause the Corporation to be
"closely held" within the meaning of Section 883 of the Code and the regulations
promulgated thereunder and the intended transferee shall acquire no rights in
such Shares.
(b) Excess Shares.
(1) If, notwithstanding the other provisions contained
in these Articles of Incorporation, at any time from the Section 883 Amendment
Date until the Restriction Termination Date, there is a purported Transfer or
other event such that any Person (other than an Existing Holder) would
Beneficially Own Shares in excess of the Ownership Limit, then, except as
otherwise provided in section (g) hereof, such Shares which would be in excess
of the Ownership Limit (rounded up to the nearest whole share), shall
automatically be designated as Excess Shares (without reclassification), as
further described in subsection (b)(2) hereof. The designation of such Shares as
Excess Shares shall be effective as of the close of business on the business day
prior to the date of the Transfer or other event. If, after designation of such
Shares owned directly by a Person as Excess Shares, such Person still owns
Shares in excess of the applicable Ownership Limit, Shares Beneficially Owned by
such Person constructively in excess of the Ownership Limit shall be designated
as Excess Shares until such Person does not own Shares in excess of the
applicable Ownership Limit. Where such Person owns Shares
13
constructively through one or more Persons and the Shares held by such other
Persons must be designated as Excess Shares, the designation of Shares held by
such other Persons as Excess Shares shall be pro rata.
(2) If, notwithstanding the other provisions contained in
these Articles of Incorporation, at any time from the Section 883 Amendment Date
until the Restriction Termination Date, there is a purported Transfer which, if
effective, would cause the Corporation to become "closely held" within the
meaning of Section 883 of the Code and regulations promulgated thereunder, then,
except as otherwise provided in section (g) hereof, the Shares being Transferred
and which would cause, when taken together with all other Shares, the
Corporation to be "closely held" within the meaning of Section 883 of the Code
and the regulations promulgated thereunder (rounded up to the nearest whole
share) shall automatically be designated as Excess Shares (without
reclassification). The designation of such Shares as Excess Shares shall be
effective as of the close of business on the business day prior to the date of
the Transfer. If, after designation of such Shares owned directly by a Person as
Excess Shares, such Person still owns Shares in excess of the applicable
Ownership Limit, Shares Beneficially Owned by such Person constructively in
excess of the Ownership Limit shall be designated as Excess Shares until such
Person does not own Shares in excess of the applicable Ownership Limit. Where
such Person owns Shares constructively through one or more Persons and the
Shares held by such other Persons must be designated as Excess Shares, the
designation of Shares held by such other Persons as Excess Shares shall be pro
rata.
(c) Remedies for Breach. If the Board of Directors or their
designees shall at any time determine in good faith that a purported Transfer or
other event has taken place in violation of section (a) hereof or that a Person
intends to acquire or has attempted to acquire Beneficial Ownership of any
Shares in violation of section (a) hereof, the Board of Directors or their
designees may take such action as they deem advisable to refuse to give effect
to or to prevent such Transfer or other event, including, but not limited to,
refusing to give effect to such Transfer or other event on the books of the
Corporation or instituting proceedings to enjoin such Transfer or other event or
transaction; provided, however, that any Transfers or attempted Transfers (or,
in the case of events other than a Transfer, Beneficial Ownership) in violation
of section (a) hereof shall be void ab initio and automatically result in the
designation and treatment described in section (b) hereof, irrespective of any
action (or non-action) by the Board of Directors or their designees.
(d) Notice of Restricted Transfer. Any Person who acquires or
attempts to acquire Shares in violation of section (a) hereof, or any Person who
is a purported transferee such that Excess Shares result under section (b)
hereof, shall immediately give written notice to the Corporation of such
Transfer, attempted Transfer or other event and shall provide to the Corporation
such other information as the Corporation may request in order to determine the
effect, if any, of such Transfer or attempted Transfer or other event on the
Corporation's status as qualifying for exemption from taxation on gross income
from the international operation of a ship or ships within the meaning of
Section 883 of the Code.
14
(e) Exclusion. The restrictions set forth in section (a) shall
not apply to any Shares with respect to which such restrictions are prohibited
pursuant to applicable provisions of the corporation laws of the Republic of
Panama.
(f) Remedies Not Limited. Subject to section (j) hereof,
nothing contained in these Articles of Incorporation shall limit the authority
of the Board of Directors to take such other action as they deem necessary or
advisable to protect the interests of the Corporation's shareholders by
preservation of the Corporation's status as exempt from taxation on gross income
from the international operation of a ship or ships within the meaning of
Section 883 of the Code and to ensure compliance with the Ownership Limit.
(g) Exception. The Board of Directors upon receipt of a ruling
from the Internal Revenue Service or an opinion of tax counsel, satisfactory to
them in their sole and absolute discretion, in each case to the effect that the
Corporation's status as exempt from taxation on gross income from the
international operation of a ship or ships within the meaning of Section 883 of
the Code will not be jeopardized or worsened, may exempt a Person (or may
generally exempt any class of Persons) or any class of Shares from the Ownership
Limit if the Board of Directors, in its sole discretion, ascertains that such
Person's (or Persons') Beneficial Ownership of Shares or the Beneficial
Ownership of such class of Shares will not jeopardize or worsen the
Corporation's status as exempt from taxation on gross income from the
international operation of a ship or ships within the meaning of Section 883 of
the Code. The Board of Directors may require representations and undertakings
from such Person or Persons as are necessary to make such determination.
(h) Legend. After the Section 883 Amendment Date, and prior to
the Restriction Termination Date, each certificate for the Shares shall bear the
following legend:
The Shares represented by this certificate are subject to restrictions
on transfer. Unless excepted by the Board of Directors or exempted by
the terms of the Articles of Incorporation of Carnival Corporation, no
Person may (1) Beneficially Own Shares in excess of 4.9% of the
outstanding Shares, by value, vote or number, determined as provided in
the Articles of Incorporation of Carnival Corporation, and computed
with regard to all outstanding Shares and, to the extent provided by
the Code, all Shares issuable under existing options and exchange
rights that have not been exercised; or (2) Beneficially Own Shares
which would result in the Corporation being "closely held." Unless so
excepted, any acquisition of Shares and continued holding of ownership
constitutes a continuous representation of compliance with the above
limitations, and any Person who attempts to Beneficially Own Shares in
excess of the above limitations has an affirmative obligation to notify
the Corporation immediately upon such attempt. If the restrictions on
transfer are violated, the transfer will be void ab initio and the
Shares represented hereby will be designated and treated as Excess
Shares that will be held in trust. Excess Shares may not be transferred
at a profit and may be purchased by the Corporation. In addition,
certain Beneficial
15
Owners must give written notice as to certain information on demand and
on exceeding certain ownership levels. All terms not defined in this
legend have the meanings provided in the Articles of Incorporation of
Carnival Corporation. The Corporation will mail without charge to any
requesting shareholder a copy of the Articles of Incorporation,
including the express terms of each class and series of the authorized
Shares of the Corporation, within five (5) days after receipt by the
Secretary of the Corporation of a written request therefor.
(i) Severabilty. If any provision of Article XII or XIII or any
application of any such provision is determined to be invalid by any Panamanian
court or United States federal or state court having jurisdiction over the
issues, the validity of the remaining provisions shall not be affected, and
other applications of such provision shall be affected only to the extent
necessary to comply with the determination of such court.
(j) New York Stock Exchange Transactions. Nothing in these Articles of
Incorporation shall preclude the settlement of any transaction entered into
through the facilities of the New York Stock Exchange. The fact that the
settlement of any transaction occurs shall not negate the effect of any other
provision of these Articles of Incorporation and any transferee in such a
transaction shall be subject to all the provisions and limitations set forth in
these Articles of Incorporation.
(k) Owners Required to Provide Information. After the Amendment Date
and prior to the Restriction Termination Date: (1) Every Beneficial Owner of
three percent (3%) or more, by vote, value or number, or such lower percentages
as required pursuant to regulations under the Code, of the outstanding Shares
shall promptly after becoming such a three percent (3%) Beneficial Owner, give
written notice to the Corporation stating the name and address of such
Beneficial Owner, the general ownership structure of such Beneficial Owner, the
number of shares of each class of Shares Beneficially Owned, and a description
of how such Shares are held. (2) Each Person who is a Beneficial Owner of Shares
and each Person (including the shareholder of record) who is holding Shares for
a Beneficial Owner shall provide on demand to the Corporation such information
as the Corporation may request from time to time in order to determine the
Corporation's status as exempt from taxation on gross income from the
international operation of a ship or ships within the meaning of Section 883 of
the Code and to ensure compliance with the Ownership Limit.
ARTICLE XIII
Excess Shares
(a) Ownership in Trust. Upon any purported Transfer or other event
that results in Excess Shares pursuant to section (b) of Article XII hereof,
such Excess Shares shall be deemed to have been transferred to the Excess Share
Trustee, as trustee of the Excess Share Trust, for the benefit of the Charitable
Beneficiary effective as of the close of business on the business day prior to
the date of the Transfer or other event. Excess Shares so held in trust shall be
issued and outstanding shares of the Corporation. The Purported Record
Transferee or Purported Record Holder shall have no rights in such Excess
Shares. The Purported Beneficial Transferee or Purported Beneficial Holder shall
16
have no rights in such Excess Shares except as provided in section (c) or (e) of
Article XIII. The Excess Share Trustee may resign at any time so long as the
Corporation shall have appointed a successor trustee. The Excess Share Trustee
shall, from time to time, designate one or more charitable organization or
organizations as the Charitable Beneficiary.
(b) Dividend Rights. Excess Shares shall be entitled to the same
dividends determined as if the designation of Excess Shares had not occurred.
Any dividend or distribution paid prior to the discovery by the Corporation that
the Shares have been designated as Excess Shares shall be repaid to the Excess
Share Trust upon demand. Any dividend or distribution declared but unpaid shall
be paid to the Excess Share Trust. All dividends received or other income earned
by the Excess Share Trust shall be paid over to the Charitable Beneficiary.
(c) Rights Upon Liquidation. Upon liquidation, dissolution or winding
up of the Corporation, the Purported Beneficial Transferee or Purported
Beneficial Holder shall receive, for each Excess Share, the lesser of (1) the
amount per share of any distribution made upon liquidation, dissolution or
winding up or (2) (x) in the case of Excess Shares resulting from a purported
Transfer, the price per share of the Shares in the transaction that created such
Excess Shares (or, in the case of the devise, gift or other similar event, the
Market Price of such Shares on the date of such devise, gift or other similar
event) or (y) in the case of Excess Shares resulting from an event other than a
purported Transfer, the Market Price of the Shares on the date of such event.
Any amounts received in excess of such amount shall be paid to the Charitable
Beneficiary.
(d) Voting Rights. The Excess Share Trustee shall be entitled to vote
the Excess Shares on behalf of the Charitable Beneficiary on any matter. Subject
to Panamanian law, any vote cast by a Purported Record Transferee with respect
to the Excess Shares prior to the discovery by the Corporation that the Excess
Shares were held in trust will be rescinded ab initio; provided, however, that
if the Corporation has already taken irreversible action with respect to a
merger, reorganization, sale of all or substantially all the assets, dissolution
of the Corporation or other action by the Corporation, then the vote cast by the
Purported Record Transferee shall not be rescinded. The purported owner of the
Excess Shares will be deemed to have given an irrevocable proxy to the Excess
Share Trustee to vote the Excess Shares for the benefit of the Charitable
Beneficiary.
Notwithstanding the provisions of these Articles of Incorporation,
until the Corporation has received notification that Excess Shares have been
transferred into an Excess Share Trust, the Corporation shall be entitled to
rely on its share transfer and other shareholder records for purposes of
preparing lists of shareholders entitled to vote at meetings, determining the
validity and authority of proxies and otherwise conducting votes of
shareholders.
(e) Restrictions on Transfer; Designation of Excess Share Trust
Beneficiary. Excess Shares shall be transferable only as provided in this
section (e) of Article XIII. At the direction of the Board of Directors, the
Excess Share Trustee shall
17
transfer the Excess Shares held in the Excess Share Trust to a Person or Persons
(including, without limitation, the Corporation under section (f) below) whose
ownership of such Shares shall not violate the Ownership Limit or otherwise
cause the Corporation to become "closely held" within the meaning of Section 883
of the Code within 180 days after the later of (i) the date of the Transfer or
other event which resulted in Excess Shares and (ii) the date the Board of
Directors determines in good faith that a Transfer or other event resulting in
Excess Shares has occurred, if the Corporation does not receive a notice of such
Transfer or other event pursuant to section (d) hereof. If such a transfer is
made, the interest of the Charitable Beneficiary shall terminate, the
designation of such Shares as Excess Shares shall thereupon cease and a payment
shall be made to the Purported Beneficial Transferee, Purported Beneficial
Holder and/or the Charitable Trustee as described below. If the Excess Shares
resulted from a purported Transfer, the Purported Beneficial Transferee shall
receive a payment from the Excess Share Trustee that reflects a price per share
for such Excess Shares equal to the lesser of (A) the price per share received
by the Excess Share Trustee and (B) (x) the price per share such Purported
Beneficial Transferee paid for the Shares in the purported Transfer that
resulted in the Excess Shares, or (y) if the Purported Beneficial Transferee did
not give value for such Excess Shares (through a gift, devise or other similar
event) a price per share equal to the Market Price of the Shares on the date of
the purported Transfer that resulted in the Excess Shares. If the Excess Shares
resulted from an event other than a purported Transfer, the Purported Beneficial
Holder shall receive a payment from the Excess Share Trustee that reflects a
price per share of Excess Shares equal to the lesser of (A) the price per share
received by the Excess Share Trustee and (B) the Market Price of the Shares on
the date of the event that resulted in Excess Shares. Prior to any transfer of
any interest in the Excess Share Trust, the Corporation must have waived in
writing its purchase rights, if any, under section (f) below. Any funds received
by the Excess Share Trustee in excess of the funds payable to the Purported
Beneficial Holder or the Purported Beneficial Transferee shall be paid to the
Charitable Beneficiary. The Corporation shall pay the costs and expenses of the
Excess Share Trustee.
Notwithstanding the foregoing, if the provisions of this section (e)
are determined to be void or invalid by virtue of any legal decision, statute,
rule or regulation, then the Purported Beneficial Transferee or Purported
Beneficial Holder of any shares of Excess Shares may be deemed, at the option of
the Corporation, to have acted as an agent on behalf of the Corporation in
acquiring or holding such Excess Shares and to hold such Excess Shares on behalf
of the Corporation.
(f) Purchase Right in Excess Shares. Excess Shares shall be deemed to
have been offered for sale by the Excess Share Trustee to the Corporation, or
its designee, at a price per Excess Share equal to (i) in the case of Excess
Shares resulting from a purported Transfer, the lesser of (A) the price per
share of the Shares in the transaction that created such Excess Shares (or, in
the case of devise, gift or other similar event, the Market Price of the Shares
on the date of such devise, gift or other similar event), or (B) the lowest
Market Price of the class of Shares which resulted in the Excess Shares at any
time after the date such Shares were designated as Excess Shares and prior to
the date the Corporation, or its designee, accepts such offer or (ii) in the
case of Excess Shares resulting from an event other than a purported Transfer,
the lesser of (A) the
18
Market Price of the Shares on the date of such event or (B) the lowest Market
Price for Shares which resulted in the Excess Shares at any time from the date
of the event resulting in such Excess Shares and prior to the date the
Corporation, or its designee, accepts such offer. The Corporation shall have the
right to accept such offer for a period of ninety (90) days after the later of
(i) the date of the Transfer or other event which resulted in such Excess Shares
and (ii) the date the Board of Directors determines in good faith that a
Transfer or other event resulting in Excess Shares has occurred, if the
Corporation does not receive a notice of such Transfer or other event pursuant
to section (d) hereof.
(g) Underwritten Offerings. The Ownership Limit shall not apply to the
acquisition of Shares or rights, options or warrants for, or securities
convertible into, Shares by an underwriter in a public offering or placement
agent in a private offering, provided that the underwriter makes a timely
distribution of such Shares or rights, options or warrants for, or securities
convertible into, Shares.
ARTICLE XIV
Combined Group Ownership Restrictions
(a) Triggering Acquisition. From the Amendment Date: Subject to
section (b) below, if any person (an "Acquiring Person") acquires additional
Ordinary Shares or voting control over additional Ordinary Shares and, after
giving effect to such acquisition (or, if the Corporation is subject to the City
Code, acquires Ordinary Shares or voting control over Ordinary Shares) such
Acquiring Person, whether solely or together with any person or persons Acting
in Concert with such Acquiring Person, holds or exercises voting control over
Ordinary Shares which equal or are in excess of the Combined Group City Code
Limit (such acquisition of Ordinary Shares or voting control over Ordinary
Shares, a "Triggering Acquisition"), then all (x) Ordinary Shares held by the
Acquiring Person or over which the Acquiring Person exercises voting control,
and (y) Ordinary Shares held by any party or parties Acting in Concert with such
Acquiring Person or over which any party or parties Acting in Concert with such
Acquiring Person exercise(s) voting control (the "Acquiring Person Attributable
Shares") shall automatically be designated as "Combined Group Restricted Shares"
for the purposes of Articles XIV and XV. A Triggering Acquisition can occur more
than once, and the provisions set forth in Articles XIV and XV shall apply to
every separate Triggering Acquisition or series of Triggering Acquisitions.
(b) Qualifying Takeover Offer. Notwithstanding the provisions of
section (a) above, if:
(1) prior to or simultaneously with a Triggering Acquisition,
such Acquiring Person has made a Qualifying Takeover Offer (and, in the event
that the Qualifying Takeover Offer was made prior to the Triggering Acquisition,
such Qualifying Takeover Offer has not been withdrawn, abandoned or terminated
prior to or simultaneously with the Triggering Acquisition), or
19
(2) the circumstances described in clause (1) have not occurred,
and such Acquiring Person (x) within 10 days after the date on which the
applicable Triggering Acquisition occurs, makes a binding public announcement to
commence a Qualifying Takeover Offer, and (y) within 28 days after making the
public announcement referred to in the preceding clause (x), commences a
Qualifying Takeover Offer,
then the Acquiring Person Attributable Shares shall not be designated Combined
Group Restricted Shares for the purposes of Articles XIV and XV hereof until the
earliest to occur (if at all) of (i) a withdrawal, abandonment or termination of
such Qualifying Takeover Offer other than in accordance with its terms, or (ii)
any amendment, modification or supplement to the terms of either offer
comprising the Qualifying Takeover Offer such that, as amended, modified or
supplemented, the offers would not constitute a Qualifying Takeover Offer;
provided, that immediately upon the earliest to occur of the events described in
clause (i) or (ii), such Acquiring Person Attributable Shares shall be
automatically designated as Combined Group Restricted Shares.
(c) Determination of Combined Group Excess Shares. In the event that
any Ordinary Shares are designated Combined Group Restricted Shares pursuant to
section (a) or (b):
(1) If the Combined Group Restricted Shares (A) consist entirely
of Carnival Common Stock, and (B) are held by or subject to the voting control
of a single person, then all Carnival Common Stock held by such person or over
which such person exercises voting control which cause the Combined Group City
Code Limit to be equaled or exceeded, shall automatically be designated as
Combined Group Excess Shares for the purposes of Article XV.
(2) If the Combined Group Restricted Shares (A) consist of both
Carnival Common Stock and P&O Princess Ordinary Shares, and (B) are held by or
subject to the voting control of a single person, then:
(A) if, after giving effect to the Equalization Ratio, (x) the
number of votes represented by such Carnival Common Stock that could be
cast with respect to a Joint Electorate Action exceeds (y) the number of
votes represented by such P&O Princess Ordinary Shares that could be cast
with respect to a Joint Electorate Action, then all Carnival Common Stock
held by such person or over which such person exercises voting control
which cause the Combined Group City Code Limit to be equaled or exceeded
shall automatically be designated as Combined Group Excess Shares for the
purposes of Article XV; and
(B) if, after giving effect to the Equalization Ratio, (x) the
number of votes represented by such Carnival Common Stock that could be
cast with respect to a Joint Electorate Action is less than or equal to (y)
the number of votes represented by such P&O Princess Ordinary Shares that
could be cast with respect to a Joint Electorate Action, such Carnival
Common Stock shall be automatically be designated as Combined Group Excess
Shares for the purposes of Article XV only to the extent that such Carnival
Common Stock would give such person
20
ownership or voting control equal to or in excess of the Combined Group
City Code Limit, as if determined without regard to any P&O Princess
Ordinary Shares held or subject to the voting control of such person.
(3) If the Combined Group Restricted Shares are held by or
subject to the voting control of two or more persons Acting in Concert, where:
(A) all or a part of such Combined Group Restricted Shares would
all have been designated as Combined Group Excess Shares pursuant to
subsection (c)(1) hereof had they been held by or subject to the voting
control of a single person; or
(B) all or a part of such Combined Group Restricted Shares would
have been designated as Combined Group Excess Shares pursuant to subsection
(c)(2) hereof had they been held by or subject to the voting control of a
single person,
then such automatic designation as Combined Group Excess Shares for the purposes
of Article XV shall be made with respect to the same number of Carnival Common
Stock held by or subject to the voting control of such persons Acting in Concert
as if they had been held by or subject to the voting control of a single person,
such designation to be made on a pro rata basis based on the number of Carnival
Common Stock each such person holds or over which each such person exercises
voting control.
(d) Notice.
(1) Any person whose acquisition of Ordinary Shares or voting
control over Ordinary Shares would or does result in any Ordinary Shares being
constituted as Combined Group Restricted Shares pursuant to section (a) or (b)
hereof shall immediately give written notice to the Corporation of such event
and shall provide to the Corporation such other information as the Corporation
may request in order to determine (i) whether any acquisition of Ordinary Shares
or voting control over Ordinary Shares has resulted or could result in any
Ordinary Shares being designated as Combined Group Restricted Shares under this
Article XIV, and/or (ii) to what extent any Combined Group Restricted Shares
should be designated as Combined Group Excess Shares pursuant to section (c)
hereof.
(2) The Corporation will, as soon as practicable after the Board
of Directors has knowledge thereof, notify in writing any Person who holds any
Combined Group Restricted Shares; provided that failure by the Corporation to
give any such notification shall in no way invalidate any of the provisions of
Article XIV and XV. Upon receipt of such notice from the Corporation, such
Person shall immediately provide to the Corporation such information described
in subsection (d)(1) hereof as the Corporation shall request.
(e) Exclusion. The restrictions set forth in Article XIV shall not
apply to:
21
(1) any Carnival Common Stock to the extent that such restrictions are
prohibited pursuant to Applicable Regulations.
(2) any acquisition of Ordinary Shares or voting control over Ordinary
Shares by any member of the Arison Group if, as a result, the aggregate of
the voting rights of the P&O Princess Ordinary Shares and of the Carnival
Common Stock held by the Arison Group and of the P&O Princess Ordinary
Shares and of the Carnival Common Stock over which the Arison Group, after
giving effect to the Equalization Ratio, exercises voting control does not
thereby (i) increase by one per cent. or more in any period of twelve
consecutive months and (ii) after giving effect to the Equalization Ratio,
equal or exceed forty per cent. of the aggregate voting rights attached to
the whole of the issued P&O Princess Ordinary Shares and the outstanding
Carnival Common Stock. For the avoidance of doubt, (x) a shareholder shall
not be deemed to have acquired Ordinary Shares or voting control over
Ordinary Shares if solely as a result of a share buyback, cancellation or
reduction of share capital, disenfranchisement of voting rights or any
other procedure which has the effect of reducing the share capital or the
voting share capital of the Corporation or of P&O Princess the percentage
holding of such person is increased; (y) the transfer of Ordinary Shares or
voting control over Ordinary Shares among members of the Arison Group shall
not be deemed to be a Triggering Acquisition.
(3) any acquisition pursuant to a Mandatory Exchange.
(4) any acquisition by the Corporation or any of its Subsidiaries from time
to time of any Ordinary Shares.
(5) any acquisition by any member of the P&O Princess Group of any Ordinary
Shares.
(f) Legend. After the Amendment Date, each certificate for
Carnival Common Stock shall bear the following legend:
The shares represented by this certificate are subject to certain
restrictions on ownership of shares of Carnival Corporation and P&O
Princess Cruises plc. Under the terms of the Articles of Incorporation of
the Corporation, if any person acquires Carnival Common Stock and/or P&O
Princess Ordinary Shares or voting control over such shares, and after
giving effect to such acquisition, such person, together with any person or
persons Acting in Concert with such acquiring person, holds or exercises
voting control over Carnival Common Stock and/or P&O Princess Ordinary
Shares which is equal to or in excess of such number of shares which, in
aggregate, represent the right to cast 30% or more of the votes on a Joint
Electorate Action, such shares which cause that ownership limit to be
equaled or exceeded may be designated as Combined Group Excess Shares. In
addition, any additional acquisition of Carnival Common Stock and/or P&O
Princess Ordinary Shares by a person that, together with any person or
persons Acting in Concert, holds or has voting control over Carnival Common
Stock
22
and/or P&O Princess Ordinary Shares representing the right to cast not less
than 30% and not more than 50% of the votes on a Joint Electorate Action,
may result in certain shares being designated as Combined Group Excess
Shares. Any Carnival Common Stock that are designated as Combined Group
Excess Shares will be transferred to a trustee, and the prior holder
thereof will have no right to vote such shares or receive dividends or
other distributions with respect thereto. A person may exceed the ownership
limits described above if such person makes a Qualifying Takeover Offer
with respect to all Carnival Common Stock and P&O Princess Ordinary Shares.
Holders may be required to provide written notice and other information to
the Corporation if such ownership levels are equaled or exceeded. The
foregoing is only a summary of the applicable restrictions and is qualified
in its entirety by reference to the Articles of Incorporation of the
Corporation. The Corporation will mail without charge to any requesting
shareholder of the Corporation a copy of the Articles of Incorporation,
within five (5) days after receipt by the Secretary of the Corporation of a
written request therefor. All terms not defined in this legend have the
meanings provided in the Articles of Incorporation of Carnival Corporation.
(g) Severability. If any provision of Articles XIV or XV or any
application of any such provision is determined to be invalid by any Panamanian
court or United States federal or state court having jurisdiction over the
issues, the validity of the remaining provisions shall not be affected, and
other applications of such provision shall be affected only to the extent
necessary to comply with the determination of such court.
(h) New York Stock Exchange Transactions. Nothing in these Articles of
Incorporation shall preclude the settlement of any transaction entered into
through the facilities of the New York Stock Exchange. The fact that the
settlement of any transaction occurs shall not negate the effect of any other
provision of these Articles of Incorporation and any transferee in such a
transaction shall be subject to all the provisions and limitations set forth in
these Articles of Incorporation.
ARTICLE XV
Combined Group Excess Shares
(a) Ownership in Trust. Upon the designation of any Carnival Common
Stock as Combined Group Excess Shares pursuant to section (c) of Article XIV
hereof, such Combined Group Excess Shares shall be transferred by or on behalf
of the Combined Group Excess Share Holder to the Excess Share Trustee, as
trustee of the Excess Share Trust, for the benefit of the Charitable
Beneficiary. Until such transfer to the Excess Share Trustee, the Combined Group
Excess Shares shall be held by the Combined Group Excess Share Holder in trust
for the benefit of the Charitable Beneficiary in accordance with the terms of
these Articles of Incorporation. From the date that such Carnival Common Stock
are designated as Combined Group Excess Shares, the Combined Group Excess Share
Holder shall have no rights in such Combined Group Excess Shares, except as
provided in section (c), (e) or (f) below. The Excess
23
Share Trustee may resign at any time so long as the Corporation shall have
appointed a successor trustee. The Excess Share Trustee shall, from time to
time, designate one or more charitable organization or organizations as the
Charitable Beneficiary. More than one Excess Share Trustee may be appointed to
hold the Combined Group Excess Shares in trust for one or more Charitable
Beneficiaries.
(b) Dividend Rights. Combined Group Excess Shares shall be entitled to
the same dividends and other distributions determined as if the designation of
Combined Group Excess Shares had not occurred. Any dividend or distribution made
or paid on or after the date such Carnival Common Stock are designated as
Combined Group Restricted Shares and prior to the designation of such Carnival
Common Stock as Combined Group Excess Shares shall be repaid to the Excess Share
Trust upon demand. Any dividend or distribution declared but unpaid or not made
shall be paid to the Excess Share Trust. All dividends received or other income
earned by the Excess Share Trust shall be paid over to the Charitable
Beneficiary.
(c) Rights Upon Liquidation. Notwithstanding the fact that Combined
Group Excess Shares are held in trust for a Charitable Beneficiary, upon
Liquidation of the Corporation, the Combined Group Excess Share Holder shall
receive (if it has not already received consideration for such shares pursuant
to section (e) or (f) below), for each Combined Group Excess Share, the amount
per share of any distribution made upon Liquidation with respect to Carnival
Common Stock generally, less any costs and expenses incurred by the Corporation,
the Excess Share Trustee and the Charitable Beneficiary in connection with the
transfer of the Combined Group Excess Shares to the Excess Share Trustee and the
holding of such shares by the Excess Share Trustee.
(d) Voting Rights.
(1) The Excess Share Trustee shall be entitled, but shall not be
required, to vote the Combined Group Excess Shares on behalf of the Charitable
Beneficiary on any matter. Subject to Panamanian law, any vote cast by a
Combined Group Excess Share Holder with respect to the Combined Group Excess
Shares prior to the designation of such shares as Combined Group Restricted
Shares will be rescinded ab initio; provided, however, that if the Corporation
has already taken irreversible action with respect to a merger, reorganization,
sale of all or substantially all the assets, dissolution of the Corporation or
other action by the Corporation, then the vote cast by the Combined Group Excess
Share Holder shall not be rescinded. The purported owner of the Combined Group
Excess Shares will be deemed to have given an irrevocable proxy to the Excess
Share Trustee to vote the Combined Group Excess Shares for the benefit of the
Charitable Beneficiary.
(2) Notwithstanding the provisions of these Articles of
Incorporation, until the Corporation has received notification that Combined
Group Excess Shares have been transferred into an Excess Share Trust, the
Corporation shall be entitled to rely on its share transfer and other
shareholder records for purposes of preparing lists of shareholders entitled to
vote at meetings, determining the validity and authority of proxies and
otherwise conducting votes of shareholders.
24
(e) Transfer of Combined Group Excess Shares.
(1) Combined Group Excess Shares shall be transferable only as
provided in this section (e). At the direction of the Board of Directors, the
Excess Share Trustee shall transfer the Combined Group Excess Shares held in the
Excess Share Trust to a person or persons (including, without limitation, the
Corporation under section (f) below) whose ownership of such Carnival Common
Stock would not result in a designation of any Carnival Common Stock as Combined
Group Restricted Shares pursuant to section (a) or (b) of Article XIV, within
180 days after the later of (i) the date of the event that resulted in such
shares being designated as Combined Group Restricted Shares pursuant to section
(a) or (b) of Article XIV, and (ii) the date that the Board of Directors
determines or is notified that an event resulting in Combined Group Restricted
Shares has occurred. If such a transfer is made, the interest of the Charitable
Beneficiary shall terminate, the designation of such Carnival Common Stock as
Combined Group Excess Shares shall thereupon cease and a payment shall be made
to the Combined Group Excess Share Holder as described below. The Combined Group
Excess Share Holder shall receive a payment from the Excess Share Trustee that
reflects a price per share of Combined Group Excess Shares equal to the price
per share received by the Excess Share Trustee upon such transfer, less any
costs and expenses incurred by the Corporation, the Excess Share Trustee upon
such transfer and the Charitable Beneficiary in connection with the transfer of
the Combined Group Excess Shares to the Excess Share Trustee, the holding of
such shares by the Excess Share Trustee and the transfer of such shares in
accordance with this section (e).
(2) Notwithstanding the foregoing, if the provisions of this
section (e) are determined to be void or invalid by virtue of any applicable
law, then the Combined Group Excess Share Holder may be deemed, at the option of
the Corporation, to have acted as an agent on behalf of the Corporation in
acquiring or holding such Combined Group Excess Shares and to hold such Combined
Group Excess Shares on behalf of the Corporation.
(f) Purchase Right in Combined Group Excess Shares. Combined Group
Excess Shares shall be deemed to have been offered for sale by the Excess Share
Trustee to the Corporation, or its designee, at a price per Combined Group
Excess Share equal to the Market Price of the Carnival Common Stock on the date
that the Corporation acquires the Combined Group Excess Shares, less any costs
and expenses incurred by the Corporation, the Excess Share Trustee and the
Charitable Beneficiary in connection with the transfer of the Combined Group
Excess Shares to the Excess Share Trustee, the holding of such shares by the
Excess Share Trustee and the transfer of such shares in accordance with this
section (f). The Corporation shall have the right to accept such offer for a
period of ninety (90) days after the later of (i) the date of the event that
resulted in such shares being designated as Combined Group Restricted Shares
pursuant to section (a) or (b) of Article XIV, and (ii) the date the Board of
Directors determines in good faith that an event resulting in Combined Group
Restricted Shares has occurred, if the Corporation does not receive a notice of
such Transfer or other event pursuant to section (d) of Article XIV.
25
(g) Underwritten Offerings. The provisions of Articles XIV and XV
shall not apply to the acquisition of Carnival Common Stock or rights, options
or warrants for, or securities convertible into, Carnival Common Stock by an
underwriter in a public offering or placement agent in a private offering;
provided, that the underwriter or placement agent makes a timely distribution of
such Carnival Common Stock or rights, options or warrants for, or securities
convertible into, Carnival Common Stock such that, after the distribution, such
underwriter or placement agent does not hold or exercise voting control over
Ordinary Shares equal to or in excess of the Combined Group City Code Limit.
(h) Applicability of Ownership Limit and Combined Group City Code
Limit. Notwithstanding anything in these Articles to the contrary, in the event
of any occurrence that results in Carnival Common Stock being designated as both
Excess Shares pursuant to Article XII and Combined Group Restricted Shares
pursuant to Article XIV, such Shares shall be designated as Excess Shares and
not Combined Group Excess Shares.
(i) Voting Control. For purposes of Articles XIV and XV, (i)
references to holding or acquiring shares will also be deemed to include holding
or acquiring voting control over shares, (ii) a person will be deemed to have
voting control over shares if such person has the power to direct the voting of
such shares, and (iii) a person will be deemed to acquire shares upon the
occurrence of any event which results in such person Acting in Concert with
another person with respect to such other person's shares.
ARTICLE XVI
Dividends and Distributions
(a) Subject to the Equalization Agreement and the provisions of these
Articles of Incorporation, the Corporation shall not pay or make any
Distribution in cash unless P&O Princess also pays or makes a Distribution in
cash at approximately the same time and the ratio of the Equalized Distribution
Amount so paid or made by the Corporation to the Equalized Distribution Amount
so paid or made by P&O Princess (converted, if applicable, at the Applicable
Exchange Rate for such Distributions and rounded to five decimal places) equals
the Equalization Ratio in effect on the Distribution Determination Date for such
Distributions (each, an "Equivalent Distribution").
(b) The Corporation shall not declare or otherwise become obligated to
pay or make a Distribution in cash unless (i) on the date on which such
declaration is made or such obligation is created, P&O Princess has sufficient
Distributable Reserves to make an Equivalent Distribution with respect to such
Distribution or (ii) the Corporation agrees to pay, and does pay, to P&O
Princess (before P&O Princess pays or makes such Distribution) the minimum
amount required by P&O Princess so that it will have sufficient Distributable
Reserves to pay or make such an Equivalent Distribution. Notwithstanding
compliance with the preceding sentence, if P&O Princess shall have declared or
otherwise become obligated to pay or make an Equivalent Distribution and does
not have sufficient Distributable Reserves to pay or make such Equivalent
Distribution when due, then the Corporation shall pay to P&O Princess the
minimum
26
amount required by P&O Princess so that P&O Princess will have sufficient
Distributable Reserves to pay or make such Equivalent Distribution; provided,
however, that if the Corporation does not have sufficient Distributable Reserves
to pay or make in full both the Equivalent Distribution that it declared or
became obligated to make and the payment required by this sentence, then (i) the
Corporation shall only pay or make the portion of that Equivalent Distribution
(and any related payment that would have been required by this sentence in
respect of such portion if it were the entire Equivalent Distribution that the
Corporation had declared or became obligated to make) that it can make out of
its Distributable Reserves, and (ii) P&O Princess shall only pay or make the
portion of its Equivalent Distribution that it can make out of its Distributable
Reserves following receipt of such payment.
(c) For purposes of section (b) above, any amount the Corporation is
required to pay to P&O Princess shall be determined after taking into account
all Taxes payable by, and all Tax credits of, the Corporation and P&O Princess
with respect to the payment or receipt of such payment and any such payment may
be made on the Equalization Share, if any, issued by the Corporation if both the
Board of Directors and the P&O Princess Board deem it appropriate.
(d) The Board of Directors shall:
(1) insofar as is practicable in relation to any proposed cash
Distribution, cooperate with the P&O Princess Board to agree the amount of the
Equivalent Distribution to be paid by the Corporation and P&O Princess;
(2) determine to pay or recommend to pay Equivalent Distributions
at Board of Directors meetings convened as close in time to those similarly
convened by the P&O Princess Board as is practicable;
(3) cooperate with the P&O Princess Board to announce and pay
Equivalent Distributions simultaneously or as close in time as practicable;
(4) ensure that the record dates for receipt of the Equivalent
Distribution, in respect of the Corporation and P&O Princess, are on the same
date; and
(5) generally coordinate with the P&O Princess Board the timing
of all other aspects of the payment or making of Equivalent Distributions.
ARTICLE XVII
Liquidation
(a) In the event of a voluntary or involuntary Liquidation of the
Corporation, the Corporation will, subject to subsection (b) below, make such
payments or take such other actions required to ensure that the holders of
Carnival Common Stock and P&O Princess Ordinary Shares would, had each of the
Corporation and P&O Princess gone into Liquidation on the same date, be entitled
to receive a Liquidation Distribution which is equivalent on a per share basis
in accordance with the Equalization
27
Ratio then in effect and having regard to the Liquidation Exchange Rate, but
disregarding any shareholder Tax or Tax Benefit.
(b) To establish the amount payable under section (a) above, each of
the Corporation and P&O Princess will determine the amount of assets (if any) it
will have available for distribution in a Liquidation on the date of the
Liquidation (or notional date of Liquidation) to holders of Carnival Common
Stock or P&O Princess Ordinary Shares, as the case may be, after payment of all
debts and other financial obligations, including any Tax costs associated with
the realization of any assets on a Liquidation and any payments due with respect
to any securities ranking in preference to the Carnival Common Stock or the P&O
Princess Ordinary Shares, as the case may be (each such amount, the "Net
Assets"). To the extent that the Net Assets of the Corporation or P&O Princess
would enable such company to make a Liquidation Distribution to the holders of
Carnival Common Stock or P&O Princess Ordinary Shares, as the case may be, that
is greater (taking into account the Equalization Ratio then in effect) than the
equivalent Liquidation Distribution that the other company could pay from its
Net Assets to the holders of its Ordinary Shares, adjusting such comparative
Liquidation Distribution in accordance with the Equalization Ratio then in
effect and having regard to the Liquidation Exchange Rate, but disregarding any
shareholder Tax (including any withholding Tax required to be deducted by the
company concerned) or Tax Benefit ("Equivalent Liquidation Payments"), then,
subject to subsection (c) below, such company will make a balancing payment (or
take any other action described in subsection (d) below) in such amount as will
ensure that both companies make Equivalent Liquidation Payments; provided that
neither the Corporation nor P&O Princess need make a balancing payment (or take
any other action) as described in this subsection (b) if it would result in
neither the holders of Carnival Common Stock nor the holders of P&O Princess
Ordinary Shares being entitled to receive any Liquidation Distribution at all.
(c) For purposes of subsection (b) above, any amount a company is
required to pay the other company shall be determined after taking into account
all Taxes payable by, and all Tax credits, losses or deductions of, the
Corporation and P&O Princess with respect to the payment or receipt of such
payment and any such payment may be made on the Equalization Share, if any,
issued by the paying party if both the Board of Directors and the P&O Princess
Board deem it appropriate.
(d) In giving effect to the principles regarding a Liquidation of the
Corporation and/or P&O Princess described above, the Corporation shall take such
action as may be required to give effect to such principles, which may include:
(i) making a payment (of cash or in specie) to P&O
Princess in accordance with the provisions of the Equalization
Agreement;
(ii) issuing shares (which may include the Equalization
Share) to P&O Princess or to holders of P&O Princess Ordinary Shares
and making a distribution or return on such shares; or
28
(iii) taking any other action that the Board of Directors
and the P&O Princess Board shall both consider appropriate to give
effect to such principles
provided that any action other than a payment of cash by one company to the
other company shall require the prior approval of both the Board of Directors
and the P&O Princess Board.
ARTICLE XVIII
Domicile
The domicile of the Corporation shall be in Panama City, Republic of
Panama. However, the Corporation may, as provided for by the Board of Directors,
engage in business and establish branches and keep its files and assets anywhere
in the world. Likewise, the Corporation may change its domicile of incorporation
and continue to exist under the laws or jurisdiction of another country, if
authorized by a resolution of the shareholders of the Corporation or of the
Board of Directors.
ARTICLE XIX
Directors and Officers
The names and addresses of the directors and officers of the
Corporation in office as of the date hereof are as follows:
Name Address Office
- ----------------------- ------------------------- ------------------------------------
Micky Arison 3655 N.W. 87 Avenue Director, Chairman of the Board and
Miami, Florida 33178 Chief Executive Officer
Shari Arison Golda Center Director
23 Shaul Hamelech Blvd.
Tel Aviv, Israel 64367
Maks L. Birnbach 580 Fifth Avenue Director
New York, New York 10036
Richard G. Capen, Jr. 6077 San Elijo Director
Rancho Santa Fe,
California 92067
Robert H. Dickinson 3655 N.W. 87 Avenue Director, President and Chief
Miami, Florida 33178 Operating Officer - Carnival Cruise
Lines
Arnold W. Donald 3655 N.W. 87 Avenue Director
Miami, Florida 33178
29
Name Address Office
- ----------------------- ------------------------- ------------------------------------
James M. Dubin 1285 Avenue of the Director
Americas
New York, New York 10019
Howard S. Frank 3655 N.W. 87 Avenue Director, Vice Chairman of the Board
Miami, Florida 33178 and Chief Operating Officer
A. Kirk Lanterman 300 Elliott Avenue West Director, Chairman of the Board and
Seattle, Washington 98119 Chief Executive Officer - Holland
America Line - Westours Inc.
Modesto A. Maidique Florida International Director
University
Office of the President
University Park Campus
Miami, Florida 33199
Stuart S. Subotnick 215 East 67th Street Director
New York, New York 10021
Sherwood M. Weiser 3250 Mary Street Director
Coconut Grove, Florida 33133
Meshulam Zonis 3655 N.W. 87 Avenue Director
Miami, Florida 33178
Uzi Zucker 245 Park Avenue Director
New York, New York 10167
Richard D. Ames 3655 N.W. 87 Avenue Miami,
Florida 33178 Senior Vice President - Audit Services
Gerald R. Cahill 3655 N.W. 87 Avenue Senior Vice President Finance and
Miami, Florida 33178 Chief Financial Officer
Pamela C. Conover 3655 N.W. 87 Avenue President and Chief Operating Officer,
Miami, Florida 33178 Cunard Line Limited
Kenneth D. Dubbin 3655 N.W. 87 Avenue Miami, Vice President - Corporate Development
Florida 33178
Pier L. Foschi 3655 N.W. 87 Avenue Miami, Chairman and Chief Executive Officer -
Florida 33178 Costa Crociere S.p.A
Ian Gaunt 3655 N.W. 87 Avenue Miami, Senior Vice President - International
Florida 33178
Lowell Zemnick 3655 N.W. 87 Avenue Vice President and Treasurer
Miami, Florida 33178
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Name Address Office
- ----------------------- ------------------------- --------------------------------------
Arnaldo Perez 3655 N.W. 87 Avenue Senior Vice President, General Counsel
Miami, Florida 33178 and Secretary
ARTICLE XX
Miscellaneous
(a) Ambiguity. In the case of an ambiguity in the application of any
of the provisions of these Articles of Incorporation, including any definition
contained in Article XXI hereof, the Board of Directors shall have the power to
determine the application of the provisions of these Articles of Incorporation
with respect to any situation based on the facts known to them.
(b) Enforcement. The Corporation is authorized specifically to seek
equitable relief, including injunctive relief, to enforce the provisions of
these Articles of Incorporation.
(c) Non-Waiver. No delay or failure on the part of the Corporation or
the Board of Directors in exercising any right hereunder shall operate as a
waiver of any right of the Corporation or the Board of Directors, as the case
may be, except to the extent specifically waived in writing.
(d) No Trust Business. Notwithstanding anything to the contrary
included in these Articles of Incorporation, the creation and continued
existence of the Excess Share Trust may not be regarded as constituting the
exercise by the Excess Share Trustee of trust business in Panama in violation of
the trust laws of Panama.
ARTICLE XXI
Definitions
For purposes of these Articles of Incorporation, except where the
context otherwise requires, the following terms shall have the following
meanings:
"Acting in Concert" shall have the same meaning as it has in the City
Code; provided that, notwithstanding anything to the contrary, none of (x) the
Arison Group, (y) the Corporation or (z) P&O Princess (each, a "Non-Concert
Party"), shall be deemed to be Acting in Concert with any other Non-Concert
Party for the purpose of these Articles of Incorporation.
"Amendment Date" shall mean _________, 2003.
"Applicable Exchange Rate" shall mean, in relation to any proposed
Distributions by the Corporation and P&O Princess in relation to which a foreign
exchange rate is required, the average of the closing mid-point spot U.S.
dollar-sterling exchange rate on the five Business Days ending on the Business
Day before the
31
Distribution Determination Date relating to such Distributions (as
shown in the London edition of the Financial Times, or such other point of
reference as the parties shall agree), or such other spot U.S. dollar-sterling
exchange rate or average U.S. dollar-sterling exchange rate as at such other
date (or over such other period) before a Distribution Determination Date as the
Board of Directors and the P&O Princess Board shall agree, in each case rounded
to five decimal places.
"Applicable Regulations" shall mean (a) any law, statute, ordinance,
regulation, judgment, order, decree, license, permit, directive or requirement
of any Governmental Agency having jurisdiction over the Corporation and/or P&O
Princess; and (b) the rules, regulations, and guidelines of (i) any stock
exchange or other trading market on which any shares or other securities or
depositary receipts representing such shares or securities of either the
Corporation or P&O Princess are listed, traded or quoted; and (ii) any other
body with which entities with securities listed or quoted on such exchanges
customarily comply (but, if not having the force of law, only if compliance with
such directives, requirements, rules, regulations or guidelines is in accordance
with the general practice of persons to whom they are intended to apply), in
each case for the time being in force and taking into account all exemptions,
waivers or variations from time to time applicable (in particular situations or
generally) to the Corporation or, as the case may be, P&O Princess.
"Arison Group" shall mean each of Marilyn B. Arison, Micky Arison,
Shari Arison, Michael Arison or their spouses or children or lineal descendants
of Marilyn B. Arison, Micky Arison, Shari Arison, Michael Arison or their
spouses, any trust established by Theodore Arison, any trust established for the
benefit of any Arison family member mentioned in this definition, or any
"person" (as such term is used in Section 13(d) or 14(d) of the US Securities
Exchange Act of 1934, directly or indirectly, controlling, controlled by or
under common control with any Arison family member mentioned in this paragraph
or any trust established for the benefit of any such Arison family member or any
charitable trust or non-profit entity established by a member of the Arison
Group but excluding (for the avoidance of doubt) Carnival or P&O Princess or any
of their respective Subsidiaries or affiliates.
"Articles of Incorporation" shall mean the articles of incorporation
of the Corporation, as amended from time to time.
"Associated Tax Credit" shall mean, in relation to any Distribution
proposed to be made by either the Corporation or P&O Princess, the amount of any
imputed or associated Tax credit or rebate or exemption (or the value of any
other similar associated Tax Benefit) which would be available to a shareholder
receiving or entitled to receive the Distribution, together with the amount of
any credit or benefit in respect of any Tax required to be deducted or withheld
from the Distribution by or on behalf of the paying company.
"Beneficial Ownership" shall mean ownership of Shares by a Person who
would be treated as the owner of such Shares directly, indirectly or
constructively, as determined for purposes of Section 883(c)(3) of the Code and
the regulations
32
promulgated thereunder, and shall include any Shares Beneficially Owned by any
other Person who is a "related person" with respect to such Person through the
application of Section 267(b) of the Code, as modified in any way for the
purposes of Section 883(c)(3) of the Code and the regulations promulgated
thereunder. The terms "Beneficial Owner," "Beneficially Owns" and "Beneficially
Owned" shall have correlative meanings.
"Board of Directors" or "Board" shall mean the board of directors of
the Corporation (or a duly authorised committee of the board of directors of the
Corporation) from time to time.
"Business Day" shall mean, for purposes of the definitions of
"Applicable Exchange Rate" and "Liquidation Exchange Rate" only, any day other
than a Saturday, Sunday or day on which banking institutions in the cities of
both New York and London are authorized or obligated by law or executive order
to close in the United States or England (or on which such banking institutions
are open solely for trading in euros).
"By-Laws" shall mean the by-laws of the Corporation, as from time to
time amended.
"Carnival Common Stock" shall mean issued and outstanding shares of
Common Stock from time to time, as the same may be subdivided or consolidated
from time to time and any shares of capital stock into which such Common Stock
may be reclassified, converted or otherwise changed, excluding the Carnival
Special Voting Share and the Carnival Equalization Share and, except with
respect to any voting rights and rights on a Liquidation as described in Article
V(e), shall include the Disenfranchised Carnival Common Stock.
"Carnival Deed Poll Guarantee" shall mean the deed dated as of
________ __, 2003, pursuant to which the Corporation guarantees certain
obligations of P&O Princess for the benefit of certain future creditors of P&O
Princess, as amended from time to time.
"Carnival Entrenched Articles" shall mean section (a) (2), (c), (d)
and (e) of Article V, sections (b) and (d) of Article X, Article XIV, Article
XV, Article XVI and Article XVII. and the definitions referred to therein.
"Carnival Entrenched By-Laws" shall mean the following sections of the
By-Laws 2.06, 2.08(b), 2.10, 2.15, 2.16, 2.17, 2.18, 2.19, 2.20, 3.03(a),
3.03(b), 3.07, 3.19, 3.20 and 5.03 and the definitions referred to therein.
"Carnival Entrenched Provisions" means the Carnival Entrenched
Articles and the Carnival Entrenched By-Laws.
"Carnival Special Voting Share" shall mean the special voting share,
par value $.01 per share, of the Corporation.
33
"Charitable Beneficiary" shall mean the organization or
organizations described in Section 170(c)(2) and 501(c)(3) of the Code selected
by the Excess Share Trustee.
"City Code" shall mean the United Kingdom City Code on
Takeovers and Mergers, as amended from time to time (including any supplemental
or replacement Applicable Regulations), and including any actions required, or
approved, by any relevant governing or supervisory body with authority in
relation to the United Kingdom City Code on Takeovers and Mergers (or any
replacement).
"Class Rights Action" shall mean the following actions:
(1) the voluntary Liquidation of the Corporation or P&O
Princess for which the approval of shareholders of the Corporation is required
by Applicable Regulations or proposed other than a voluntary Liquidation of both
P&O Princess and the Corporation at or about the same time with the purpose or
effect of no longer continuing the operation of the businesses of the companies
as a combined going concern and not as part of a scheme, plan, transaction or
series of related transactions the primary purpose or effect of which is to
reconstitute all or a substantial part of such businesses in one or more
successor entities;
(2) the sale, lease, exchange or other disposition of
all or substantially all of the assets of either P&O Princess or the
Corporation, other than in a bona fide commercial transaction undertaken for a
valid business purpose in which such company receives consideration with a fair
market value reasonably equivalent to the assets disposed of and not as part of
a scheme, plan, transaction or series of related transactions the primary
purpose or effect of which is to collapse or unify the DLC Structure.
(3) any adjustment to the Equalization Ratio, otherwise
than in accordance with the provisions of the Equalization Agreement;
(4) except where specifically provided for in such
agreements, any amendment to the terms of, or termination of, the Equalization
Agreement, the SVC Special Voting Deed, the Carnival Deed Poll Guarantee or the
P&O Princess Deed Poll Guarantee (including, for the avoidance of doubt, the
voluntary termination of either Deed Poll Guarantee);
(5) any amendment to, removal or alteration of the
effect of (which shall include the ratification of or any breach of) any
Carnival Entrenched Provision or any P&O Princess Entrenched Provision;
(6) any amendment to, removal or alteration of the
effect of (which shall include the ratification of any breach of) Article XII or
XIII of the Articles of Incorporation that would cause, or at the time of
implementation would be reasonably likely to cause, an Exchange Event described
in clause (a) of the definition thereof in the P&O Princess Articles to occur;
and
34
(7) the doing of anything which the Board of Directors
and the P&O Princess Board agree (either in a particular case or generally), in
their absolute discretion, should be approved as a Class Rights Action.
"Code" shall mean the United States Internal Revenue Code of
1986, as amended from time to time.
"Combined Group" means the Corporation, P&O Princess and their
respective Subsidiaries.
"Combined Group City Code Limit" shall mean, at any time (i)
with respect to any person other than a Significant Combined Group Holder (or
persons Acting in Concert) such Ordinary Shares (which may include either or
both of Carnival Common Stock or P&O Princess Ordinary Shares) representing, in
aggregate and after giving effect to the Equalization Ratio, the right to cast
30% of the votes on a Joint Electorate Action from time to time, or (ii) with
respect to a Significant Combined Group Holder only, any further Ordinary Shares
(which may include either or both of Carnival Common Stock or P&O Princess
Ordinary Shares) which increase that person's percentage of votes which could be
cast on a Joint Electorate Action from time to time.
"Combined Group Excess Share Holder" shall mean the holder of
Combined Group Excess Shares as of the date such Carnival Common Stock were
designated as Combined Group Excess Shares pursuant to section (c) of Article
XIV.
"Combined Group Excess Shares" shall mean Carnival Common
Stock designated as such pursuant to section (c) of Article XIV.
"Combined Group Restricted Shares" shall mean Carnival Common
Stock designated as such pursuant to sections (a) or (b) of Article XIV.
"Common Stock" shall mean the nominative common stock, par
value $.01 per share, of the Corporation.
"Corporation" shall mean Carnival Corporation, a corporation
organized and existing in accordance with the laws of the Republic of Panama.
"Corporation Law" shall mean the Corporation Law of the
Republic of Panama.
"Disenfranchised Carnival Common Stock" has the meaning given
to it in Article V(e).
"Distributable Reserves" shall mean, with respect to any
Distribution by the Corporation or P&O Princess, the total funds available to
such company which it is permitted to use to pay or make such Distribution under
Applicable Regulations relating to the Corporation or P&O Princess, as the case
may be.
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"Distribution" shall mean, in relation to the Corporation or
P&O Princess, any dividend or other distribution, whether of income or capital,
and in whatever form, made by such company or any of its Subsidiaries to the
holders of such company's Ordinary Shares by way of pro rata entitlement,
excluding any Liquidation Distribution or buy back or repurchase or cancellation
of Ordinary Shares.
"Distribution Determination Date" shall mean, with respect to
any parallel Distributions to be made by the Corporation and P&O Princess, the
date on which the Board of Directors and the P&O Princess Board resolve to pay
or make such parallel Distributions (or if they resolve on different dates to
pay or make such parallel Distributions, the later of those dates).
"Equalization Agreement" shall mean the Equalization and
Governance Agreement, dated as of ________ __, 200[2][3], between the
Corporation and P&O Princess, as the same may be amended or modified from time
to time in accordance with its terms.
"Equalization Fraction" shall mean, as of any date, the
Equalization Ratio as of such date expressed as a fraction where the numerator
is one and the denominator is the P&O Princess Equivalent Number comprising the
second element of such Equalization Ratio.
"Equalization Ratio" shall mean the ratio of (i) one share of
Carnival Common Stock to (ii) that number of P&O Princess Ordinary Shares that
have the same rights to distributions of income and capital and voting rights as
one share of Carnival Common Stock (the "P&O Princess Equivalent Number"). The
Equalization Ratio shall initially be 1:3.3289 but if the Corporation and P&O
Princess agree to make such subdivisions and/or combinations of Carnival Common
Stock and/or P&O Princess Ordinary Shares as are necessary to achieve the result
it shall instead be 1:1 and shall be subject to adjustment in the future as
provided in accordance with the Equalization Agreement. In all cases, the P&O
Princess Equivalent Number shall be rounded to five decimal places.
"Equalization Share" shall mean, in relation to the
Corporation, any share designated as an Equalization Share in the Corporation
from time to time by the Board and, in relation to P&O Princess, the
Equalization Share of (Pounds)50,000 in the capital of P&O Princess.
"Equalized Distribution Amount" shall mean, in relation to
either the Corporation or P&O Princess, the amount of any Distribution proposed
to be paid or made by such company at any particular time on its Ordinary
Shares, before deduction of any amount in respect of Tax required to be deducted
or withheld from such Distribution by or on behalf of such company and excluding
the amount of any Associated Tax Credit, all such amounts being expressed in the
currency of declaration and on a per share basis.
"Equivalent Distribution" shall have the meaning set forth in
section (a) of Article XVI.
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"Equivalent Liquidation Payments" shall have the meaning set
forth in section (b) of Article XVII.
"Equivalent Resolution" shall mean a resolution of either the
Corporation or P&O Princess, certified by a duly authorized officer of the
Corporation or P&O Princess as equivalent in nature and effect to a resolution
of the other company.
"Excess Shares" shall mean Shares resulting from an event
described in section (b) of Article XII.
"Excess Share Trust" shall mean a trust created pursuant to
Article XIII or Article XV hereof, as applicable.
"Excess Share Trustee" shall mean a Person, who shall be
unaffiliated with the Corporation, any Purported Beneficial Transferee, any
Purported Record Transferee and any Combined Group Excess Share Holder,
appointed by the Board of Directors as the trustee of the Excess Share Trust.
"Existing Holders" shall mean (i) any member of the group of
Persons that jointly filed the Schedule 13D with the United States Securities
and Exchange Commission on November 22, 1999, with respect to the beneficial
ownership of shares of Carnival Common Stock and (ii) any Permitted Transferee.
"Governmental Agency" shall mean a court of competent
jurisdiction or any government or governmental, regulatory, self regulatory or
administrative authority, agency, commission, body or other governmental entity
and shall include without limitation any relevant competition authorities, the
UK Panel on Takeovers and Mergers, the London Stock Exchange, the UK Listing
Authority, the U.S. Securities and Exchange Commission and the New York Stock
Exchange.
"Joint Electorate Action" shall have the meaning set forth in
the Corporation's By-Laws.
"Liquidation" shall mean, with respect to the Corporation or
P&O Princess, any liquidation, winding up, receivership, dissolution, insolvency
or equivalent proceedings pursuant to which the assets of such company will be
liquidated and distributed to creditors and other holders of provable claims
against such company.
"Liquidation Distribution" shall mean, in relation to the
Corporation or P&O Princess, any dividend or other distribution per Carnival
Common Stock or P&O Princess Ordinary Share, respectively, whether of income or
capital and in whatever form, made or to be made by such company or any of its
Subsidiaries to the holders of Carnival Common Stock or P&O Princess Ordinary
Shares, as the case may be, by way of pro rata entitlement in connection with
the Liquidation of such company.
"Liquidation Exchange Rate" shall mean, as at any date, the
average of the closing mid-point spot U.S. dollar-U.K. pound sterling exchange
rate on the five Business
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Days ending on the Business Day before such date (as shown in the London Edition
of the Financial Times), or such other U.S. dollar-U.K. pound sterling exchange
rate as the Board of Directors and the P&O Princess Board or the P&O Princess
Board and the liquidators of Carnival or the Board of Directors and the
liquidators of P&O Princess or the liquidators of both P&O Princess and Carnival
Corporation, as the case may be, may determine, in each case rounded to five
decimal places.
"Majority Resolution" means a resolution duly approved at a
meeting of the Corporation's shareholders by the affirmative vote of a majority
of all the votes cast on such resolution by all Shareholders of the Corporation
entitled to vote thereon (including, where applicable, the Carnival SVC) who are
present in person or by proxy at such meeting.
"Mandatory Exchange" shall have the meaning set forth in the
P&O Princess Articles.
"Market Price" of any class of Shares on any date shall mean
the average of the daily closing prices for any such class of Shares for the
five (5) consecutive trading days ending on such date, or if such date is not a
trading date, the five consecutive trading days preceding such date. The closing
price for each day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to any class of Shares listed or
admitted to trading on the New York Stock Exchange, or if such class of Shares
are not listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which such class of Shares are listed
or admitted to trading, or if such class of Shares are not listed or admitted to
trading on any national securities exchange, the last quoted price, or if not so
quoted, the average of the high bid and low asked prices in the over the counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System or such other system then in use, or if such class of
Shares are not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making a market in
such class of Shares selected by the Board of Directors.
"Ordinary Shares" shall mean the Carnival Common Stock and/or
the P&O Princess Ordinary Shares, as the context requires.
"Other Voting Shares" shall mean, with respect to any
resolution to be acted on by the shareholders of the Corporation or P&O
Princess, as the case may be, such shares of capital stock of that company that
are entitled to vote on such resolution at a meeting of the shareholders of such
company, other than the Carnival Special Voting Share, the P&O Princess Special
Voting Share and the Ordinary Shares.
"Ownership Limit" shall mean, in the case of a Person other
than an Existing Holder, Beneficial Ownership of more than four and nine tenths
percent (4.9%), by value, vote or number, of any class of Shares. The Ownership
Limit shall not apply to
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any Existing Holder or to any class of Shares exempted in accordance with the
provisions of section (g) of Article XII.
"P&O Princess" shall mean P&O Princess Cruises plc, a public
limited company incorporated in England and Wales.
"P&O Princess Articles" shall mean the articles of association
of P&O Princess, as amended from time to time.
"P&O Princess Board" shall mean the Board of Directors of P&O
Princess (or a duly authorized committee of the board of directors of P&O
Princess) from time to time.
"P&O Princess Equivalent Number" shall have the meaning given
to such term in the definition of "Equalization Ratio."
"P&O Princess Group" means P&O Princess and its Subsidiaries
from time to time, and a member of the P&O Princess Group means any one of them.
"P&O Princess Ordinary Shares" shall have the meaning given to
it in the P&O Princess Articles.
"P&O Princess Special Voting Share" shall mean the special
voting share of [(Pounds)1] in P&O Princess.
"Parallel Shareholder Meeting" shall have the same meaning as
it has in the By-Laws.
"Permitted Transfer" shall mean a Transfer by an Existing
Holder to any Person which does not result in the Corporation losing its
exemption from taxation on gross income derived from the international operation
of a ship or ships within the meaning of Section 883 of the Code. Any such
transferee is herein referred to as a "Permitted Transferee."
"Person" shall mean a person as defined by Section 7701(a) of
the Code.
"Preferred Stock" shall mean preferred stock, par value $.01
share, of the Corporation.
"Purported Beneficial Holder" shall mean, with respect to any
event (other than a purported Transfer, but including holding Shares in excess
of the Ownership Limitation on the Amendment Date) which results in Excess
Shares, the Person for whom the Purported Record Holder held Shares that,
pursuant to section (b) of Article XII, became Excess Shares upon the occurrence
of such event.
"Purported Beneficial Transferee" shall mean, with respect to
any purported Transfer which results in Excess Shares, the purported beneficial
transferee for
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whom the Purported Record Transferee would have acquired Shares if such Transfer
had been valid under section (a) of Article XII.
"Purported Record Holder" shall mean, with respect to any
event (other than a purported Transfer, but including holding Shares in excess
of the Ownership Limitation on the Amendment Date) which results in Excess
Shares, the record holder of the Shares that, pursuant to section (b) of Article
XII, became Excess Shares upon the occurrence of such event.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer which results in Excess Shares, the record holder of the
Shares if such Transfer had been valid under section (a) of Article XII.
"Qualifying Acquisition" shall mean an acquisition of Ordinary
Shares consummated pursuant to a Qualifying Takeover Offer.
"Qualifying Takeover Offer" shall mean an offer or offers to
acquire Carnival Common Stock and P&O Princess Ordinary Shares (i) which are
made in accordance with the City Code to the extent that the City Code applies
to the Combined Group, and (ii) which (provided that compliance with the
following is not inconsistent with the City Code):
(a) are made to all holders of Carnival Common Stock and P&O
Princess Ordinary Shares; or
(b) are undertaken with respect to the Carnival Common Stock
and P&O Princess Ordinary Shares at or about the same time; and
(c) comply with all Applicable Regulations and these Articles
of Incorporation and the P&O Princess Articles; and
(d) each of the Board of Directors and the P&O Princess Board
determines are equivalent to the holders of Carnival Common Stock, on the one
hand, and the holders of P&O Princess Ordinary Shares, on the other hand, with
respect to:
(1) the consideration offered for such shares (taking
into account exchange rates and any difference in the share price of P&O
Princess Ordinary Shares and Carnival Common Stock determined by the Board of
Directors and the P&O Princess Board in their sole discretion to be appropriate
and taking into account the Equalization Ratio);
(2) the information provided to such holders;
(3) the time available to such holders to consider such
offer
(4) the conditions to which the offers are subject; and
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(5) such other terms of the offers which the Board of
Directors and the P&O Princess Board shall determine are relevant.
"Restriction Termination Date" shall mean such date as may be
determined by the Board of Directors in its sole discretion (and for any reason)
as the date on which the ownership and transfer restrictions set forth in
Articles XII and XIII should cease to apply.
"Section 883 Amendment Date" means August 2, 2002.
"Shares" shall mean shares of the Corporation of any class or
classes traded on an established securities market as may be authorized and
issued from time to time pursuant to Article V.
"Significant Combined Group Holder" shall mean any person who,
whether solely or together with any party or parties Acting in Concert with such
person, after complying with the provisions of Articles XIV and XV, holds or
exercises voting control over Ordinary Shares (which may include either or both
of P&O Princess Ordinary Shares or Carnival Common Stock) representing, in
aggregate and after giving effect to the Equalization Ratio, the right to cast
not less than thirty percent (30%) and not more than fifty percent (50%) of the
votes on a Joint Electorate Action from time to time.
"Subsidiary" shall mean with respect to the Corporation or P&O
Princess, any entity, whether incorporated or unincorporated, in which such
company owns, directly or indirectly, a majority of the securities or other
ownership interests having by their terms ordinary voting power to elect a
majority of the directors or other persons performing similar functions, or the
management and policies of which such party otherwise has the power to direct.
"Supermajority Resolution" means a resolution required by
Applicable Regulations, these Articles of Incorporation or the By-Laws, as
relevant, to be approved by a higher percentage of votes cast than required
under a Majority Resolution, or where the percentage of votes in favour and
against the resolution is required to be calculated by a different mechanism to
that required by a Majority Resolution.
"SVC Owner" means ________________________ or such other trust
company as shall be agreed between the Corporation and P&O Princess.
"SVC Special Voting Deed" means the SVC Special Voting Deed,
dated as of ________, 2003, by and among the Corporation, Carnival SVC Limited,
P&O Princess, P&O Princess SVC Limited, and _________.
"Tax" shall mean any taxes, levies, imposts, deductions,
charges, withholdings or duties levied by any authority (including stamp and
transaction duties) (together with any related interest, penalties, fines and
expenses in connection with them).
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"Tax Benefit" shall mean any credit, rebate, exemption or
benefit in respect of Tax available to any person.
"Transfer" shall mean any sale, transfer, gift, hypothecation,
pledge, assignment, devise or other disposition of Shares (including (i) the
granting of any option or interest similar to an option (including an option to
acquire an option or any series of such options) or entering into any agreement
for the sale, transfer or other disposition of Shares or (ii) the sale,
transfer, assignment or other disposition of any securities or rights
convertible into or exchangeable for Shares), whether voluntary or involuntary,
whether of record, constructively or beneficially and whether by operation of
law or otherwise. For purposes of this definition, whether securities or rights
are convertible or exchangeable for Shares shall be determined in accordance
with Sections 267(b) and 883 of the Code.
In witness whereof, the undersigned have executed the Third
Amended and Restated Articles of Incorporation of Carnival Corporation this ___
day of __________, 2003.
_________________________________________ _________________________________
By: Micky Arison By: Arnaldo Perez
Title: Chairman of the Board of Directors Title: Secretary
and Chief Executive Officer
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