[Proposed Form]
----------------------------------
A PUBLIC COMPANY LIMITED BY SHARES
----------------------------------
ARTICLES OF ASSOCIATION
of
P&O PRINCESS CRUISES PLC
(the Company)
([ ])
----------------------------------
1
CONTENTS ARTICLE
Preliminary .................................................... 1-2
Construction. .................................................. 3-15
Share Capital .................................................. 16-34
Redeemable Shares .............................................. 35-51
Variation of Rights ............................................ 52
Share Certificates ............................................. 53-55
Lien ........................................................... 56-59
Calls on Shares ................................................ 60-66
Forfeiture and Surrender ....................................... 67-73
Transfer of Shares ............................................. 74-83
Transmission of Shares ......................................... 84-87
Alteration of Share Capital .................................... 88-91
Purchase of Own Shares ......................................... 92
General Meetings ............................................... 93-98
Notice of General Meetings ..................................... 99-110
Proceedings at General Meetings ................................ 111-123
Voting rights and procedures under theEqualization Agreement ... 124-146
Voting rights and procedures ................................... 147-160
Proxies and Corporate Representatives .......................... 161-169
Number of Directors ............................................ 170
Appointment and Retirement of Directors ........................ 171-181
Alternate Directors ............................................ 182-187
Powers of the Board ............................................ 188-190
Delegation of powers of the Board .............................. 191-194
Disqualification and Removal of Directors ...................... 195
Remuneration of Non-Executive Directors ........................ 196-197
Directors' Expenses ............................................ 198
Executive Directors ............................................ 199-201
Directors' Interests ........................................... 202-203
Gratuities, Pensions and Insurance ............................. 204-207
Proceedings of the Board ....................................... 208-217
Secretary ...................................................... 218
Minutes ........................................................ 219-220
The Seal ....................................................... 221-223
Registers ...................................................... 224-225
Dividends ...................................................... 226-247
Capitalisation of Profits and Reserves ......................... 248
Record Dates ................................................... 249
Accounts ....................................................... 250-252
Notices ........................................................ 253-265
Destruction of Documents ....................................... 266-267
Untraced Shareholders .......................................... 268-271
Liquidation .................................................... 272-276
Share Control Limit ............................................ 277-285
Combined Group Excess Shares ................................... 286
Voting Control ................................................. 287
Indemnity ...................................................... 288
Mandatory Exchange ............................................. 289-292
2
PRELIMINARY
Table A
1. Regulations in Table A as in force at the date of the incorporation of the
Company shall not apply to the Company.
Definitions
2. In these Articles, except where the subject or context otherwise requires:
"Act" means the Companies Act 1985 including any modification or
re-enactment of it for the time being in force;
"Acting in Concert" has 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 purposes of these Articles;
"Action" means, in relation to Carnival or the Company, any action
affecting the amount or nature of issued share capital of such company,
including any non-cash Distribution, offer by way of rights, bonus issue,
sub-division or consolidation, or buy-back;
"Acts" means the Act and all other statutes and subordinate legislation for
the time being in force concerning companies so far as they apply to the
Company;
"address" in relation to electronic communications, includes any number or
address used for the purposes of such communications;
a person shall be treated as "Appearing to be Interested" in any Ordinary
Shares if:
(a) the Company has received a notification which either:
(i) states that such person is, or may be, Interested in such
Ordinary Shares;
(ii) fails to establish the identities of those Interested in the
Ordinary Shares and (after taking into account any
notification and any relevant information) the directors
know or have reasonable cause to believe that the person in
question is, or may be, Interested in the Ordinary Shares; or
(b) the directors know or have reasonable cause to believe that the
person in question is, or may be, Interested in the Ordinary Shares;
"Applicable Exchange Rate" means, in relation to any proposed Distributions
by the Company and Carnival in relation to which a foreign exchange rate is
required, the average of the closing mid-point spot US dollar-sterling
exchange rate on the five Business Days ending on the Business Day before
the 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 US
dollar-sterling exchange rate or average US dollar-sterling exchange rate
as at
3
such other date (or over such other period) before a Distribution
Determination Date as the Board and the Board of Carnival shall agree, in
each case rounded to five decimal places;
"Applicable Regulations" means;
(a) any law, statute, ordinance, regulation, judgement, order, decree,
licence, permit, directive or requirement of any Governmental Agency
having jurisdiction over P&O Princess and/or Carnival; 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 P&O Princess or Carnival 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 account all exemptions, waivers or variations from time to
time applicable (in particular situations or generally) to the
Company or, as the case may be, Carnival;
"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 of 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
United States Securities Exchange Act of 1934), directly or indirectly,
controlling, controlled by or under common control with any Arison family
member mentioned in this definition 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, the Company or any of their
respective Subsidiaries or affiliates.
"Articles" means these articles of association as altered from time to time
by special resolution;
"Associated Tax Credit" means, in relation to any Distribution proposed to
be made by the Company, 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 holder of P&O Princess Ordinary
Shares 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 Company;
"Auditors" means the auditors of the Company;
4
"Board" means the board of directors of the Company (or a duly authorised
committee of the board of directors of the Company) from time to time;
"Board of Carnival" means the board of directors of Carnival (or a duly
authorised committee of the board of directors of Carnival) from time to
time;
"Business Day" means any day other than a Saturday, Sunday or day on which
banking institutions in the cities of both New York and London are
authorised or obligated by law or executive order to close in the United
Sates or England (or on which day such banking institutions are open solely
for trading in euros);
"Carnival" means Carnival Corporation;
"Carnival Common Stock" has the meaning set out in the Carnival
Constitution;
"Carnival Constitution" means the Articles of Incorporation and By-Laws of
Carnival as amended from time to time;
"Carnival Entrenched Provisions" means the Carnival Entrenched Articles and
the Carnival Entrenched By-Laws as defined in the Carnival Constitution;
"Carnival Group" means Carnival and its Subsidiaries and associated
undertakings from time to time;
"Carnival Guarantee" means the deed poll guarantee of the same date as the
Equalization Agreement under which Carnival agrees to guarantee certain
obligations of the Company for the benefit of certain future creditors of
the Company, as amended from time to time;
"Carnival Special Voting Share" means the special voting share in the
capital of Carnival having the rights set out in the Carnival Constitution;
"Carnival SVC" means the holder, from time to time, of the Carnival Special
Voting Share;
"certificated share" means a share in the capital of the Company that is
not an uncertificated share and references in these Articles to a share
being held in certificated form shall be construed accordingly;
"Charitable Beneficiary" means any registered charity or similar body or
organisation;
"City Code" means the UK 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 UK
City Code on Takeovers and Mergers (or any replacement);
"Class Rights Action" means any of the actions listed in Article 124;
"clear days" in relation to the sending of a notice means the period
excluding the day on which a notice is sent or deemed to be sent and the
day for which it is sent or on which it is to take effect;
5
"Combined Group" means the Company, Carnival and their respective
subsidiaries;
"Combined Group City Code Limit" means, 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 P&O Princess Ordinary Shares and Carnival Common
Stock) representing, in aggregate and after giving effect to the
Equalization Ratio, the right to cast 30 per cent. 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 P&O Princess Ordinary Shares or
Carnival Common Stock) which increase that person's percentage of
votes which could be cast on a Joint Electorate Action from time to
time;
"Combined Group Excess Shares" means the Ordinary Shares designated as
such pursuant to Article 279;
"Combined Group Excess Share Trust" means any trust established by the
Company for the purposes, inter alia, of holding Combined Group
Restricted Shares on behalf of, and for the benefit of, a Charitable
Beneficiary;
"Combined Group Excess Share Trustee" means any body corporate,
association or other person appointed as a trustee by the Company who
is empowered to hold, possess, dispose of and/or deal with the
Combined Group Restricted Shares;
"Combined Group Restricted Shares" means the Ordinary Shares as
determined by reference to Article 277;
"Combined Shareholders" means the holders of P&O Princess Ordinary
Shares and the holders of Carnival Common Stock;
"Companies Acts" has the meaning given by section 744 of the Act and
includes any enactment passed after those Acts which may, by virtue of
that or any other such enactment, be cited together with those Acts as
the "Companies Acts" (with or without the addition of an indication of
the date of any such enactment);
"director" means a director of the Company;
"Disenfranchised P&O Ordinary Shares" has the meaning given to it in
Article 21A;
"Distribution" means, in relation to the Company or Carnival, any
dividend or other distribution, whether of income or capital, and in
whatever form, made by the Company or Carnival (or any of their
subsidiaries) to the holders of Ordinary Shares by way of pro rata
entitlement, excluding any Liquidation Distribution, buy-back,
repurchase or cancellation of Ordinary Shares;
"Distribution Determination Date" means, with respect to any parallel
Distributions to be made by the Company and Carnival, the date on
which the Board and the Board of Carnival 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);
"dividend" means dividend or bonus;
6
"electronic signature" has the meaning given by section 7(2) of the
Electronic Communications Act 2000;
"employees' share scheme" has the meaning given by section 743 of the
Act;
"entitled by transmission" means, in relation to a share in the
capital of the Company, entitled as a consequence of the death or
bankruptcy of the holder or otherwise by operation of law;
"Equalization Agreement" means the agreement entered into between the
Company and Carnival and entitled the Equalization and Governance
Agreement, as amended from time to time;
"Equalization Distribution" shall have the meaning set out in Article
234;
"Equalization Distribution Amount" means the amount of any
Distribution proposed to be paid or made by the Company or Carnival 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 payment
and on a per share basis;
"Equalization Fraction" means, 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 (as defined in
the "Equalization Ratio" below) comprising the second element of such
Equalization Ratio;
"Equalization Ratio" means 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 parties to the Equalization Agreement agree to
make such subdivisions and/or consolidations of Carnival Common Stock
and/or P&O Princess Ordinary Shares as are necessary to achieve the
result it shall instead be 1:1 immediately after adoption of these
Articles 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" means, in relation to the Company, an
Equalization Share in the capital of the Company with a par value of
(Pounds)50,000 having the rights set out in Article 22 and, in
relation to Carnival, any share in the capital of Carnival designated
as an Equalization Share from time to time by the Board of Carnival;
"Equivalent Liquidation Payment" shall have the meaning set out in
Article 273;
"Equivalent Resolution" means a resolution of either the Company or
Carnival, certified by a duly authorised officer of the Company or of
Carnival as equivalent in nature and effect to a resolution of the
other company;
"Exchange Event" means any of the following:
(a) there shall have occurred any change in the tax laws, rules or
regulations applicable to the Company and/or Carnival and/or
their shareholders or in the
7
application or interpretation thereof (collectively, a "Change In
Tax Law") and the Board shall have reasonably determined, based
on an opinion of a recognized independent tax counsel experienced
in such matters and after using its commercially reasonable
efforts to explore the available alternatives to the Mandatory
Exchange in consultation with such counsel and external financial
advisors, that (x) such Change In Tax Law is reasonably likely to
have a material adverse effect on the Company and Carnival,
considered as a single enterprise (a "Material Adverse Tax
Effect"), (y) it is reasonably likely that such Material Adverse
Tax Effect would be eliminated or substantially reduced by a
Mandatory Exchange and (z) such Material Adverse Tax Effect could
not be substantially eliminated by any commercially reasonable
alternative to such Mandatory Exchange;
(b) either (A) there shall have occurred any change in the non-tax
laws, rules or regulations applicable to the Company and/or
Carnival or in the application or interpretation thereof
(collectively, a "Change In Other Law") as a result of which the
Board has reasonably determined that, and has received a written
legal opinion from independent counsel to the effect that, it is
reasonably likely that, or (B) any court, governmental entity or
regulatory body of competent jurisdiction shall have issued any
ruling, judgement, decree or order which has been appealed to the
extent the Board reasonably determined was appropriate in the
circumstances (the "Final Order") finding, holding or declaring
that, in either of cases (A) or (B), all or a substantial part of
the contracts between, and the constituent documents of, the
Company and Carnival that create the Combined Group (the "DLC
Arrangements") are unlawful, illegal or unenforceable
(collectively, an "Illegality Event") and the Board shall have
reasonably determined, based on an opinion of a recognized
independent counsel and after using its commercially reasonable
efforts to explore the available alternatives to the Mandatory
Exchange in consultation with such counsel and external financial
advisors, that (x) the legal basis for the Illegality Event would
be eliminated by a Mandatory Exchange, (y) the Illegality Event
could not be eliminated by any amendments to the DLC Arrangements
that would not materially and adversely affect the rights of the
shareholders of the Company or Carnival, taken together or in
relation to each other and (z) the Change in Other Law or Final
Order is reasonably likely to be enforced in a way that will have
a material adverse effect on the Company and Carnival, considered
as a single enterprise;
"Exchange Notice" means a notice that is served on the holders of P&O
Princess Ordinary Shareholders subsequent to the occurrence of an
Exchange Event;
"Governmental Agency" means 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 US Securities and
Exchange Commission and the New York Stock Exchange;
"holder" in relation to a share in the capital of the Company means
the member whose name is entered in the register as the holder of that
share;
8
A person shall be deemed to be "Interested" or to have an "Interest"
in Ordinary Shares if such person has an interest which would be taken
into account, or which he would be taken as having, in determining for
the purposes of Part VI of the Act whether a person has a notification
interest in a share (including any interest which he would be taken as
having for the purposes) but shall not be deemed to be "Interested" or
to have an "Interest" in shares which he holds as a bare or custodian
trustee under the law of England or as a simple trustee under the law
of Scotland;
"Joint Electorate Action" means any of the resolutions referred to in
Article 126;
"Law Debenture" means The Law Debenture Trust Corporation p.l.c.;
"Liquidation" means, with respect to either the Company or Carnival,
any liquidation, winding up, receivership, dissolution, insolvency or
equivalent proceedings pursuant to which the assets of either the
Company or Carnival will be liquidated and distributed to creditors
and other holders of recognisable claims against such company;
"Liquidation Distribution" means in relation to the Company or
Carnival, any dividend or other distribution per Ordinary Share,
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 such
company's Ordinary Shares by way of pro rata entitlement in connection
with the Liquidation of such company;
"Liquidation Exchange Rate" means as at any date, the average of the
closing mid-point spot US dollar-sterling exchange rate on the five
Business Days ending on the Business Day before such date (as shown in
the London edition of the Financial Times), or such other point of
reference as the Board and the Board of Carnival or the Board and
liquidators of Carnival or the Board of Carnival and the liquidators
of the Company or the liquidators of both the Company and Carnival, as
the case may be, may determine in each case rounded to five decimal
places;
"London Stock Exchange" means the London Stock Exchange plc;
"Mandatory Exchange" shall have the meaning set out in Article 289;
"Market Price" means the average of the daily closing price of an
Ordinary Share on the London Stock Exchange, as derived from the Daily
Official List, over the five consecutive Dealing Days prior to the
relevant date;
"member" means, unless the context otherwise requires, a member of the
Company;
"Member Present" means, in connection with a meeting, a member present
at the venue or venues for the meeting, in person or by proxy, by
attorney or, where the member is a body corporate, by representative;
"Memorandum" means the memorandum of association of the Company as
amended from time to time;
"NYSE" means New York Stock Exchange, Inc;
"office" means the registered office of the Company;
9
"Operator" means the "Operator" of the "relevant system", in each case
as defined in the Regulations;
"Ordinary Share" means a P&O Princess Ordinary Share and/or a share of
Carnival Common Stock, as the context requires;
"paid" means paid or credited as paid;
"Parallel Shareholder Meeting" means, in relation to Carnival, any
meeting of the shareholders of Carnival which is:
(a) nearest in time to, or contemporaneous with, the meeting of the
shareholders of the Company and at which some or all of the same
resolutions or some or all Equivalent Resolutions are to be
considered; or
(b) designated by the Board of Carnival as the parallel meeting of
shareholders of a particular general meeting of the shareholders
of the Company;
"P&O Princess" means the Company;
"P&O Princess Entrenched Provision" means Articles 19, 20, 21, 21A,
22, 52, 76, 77, 96, 97, 98, 112, 113, 124 to 132 (inclusive), 136,
147, 174, 177, 189, 194, 195(c), 234 to 237 (inclusive), 272 to 275
(inclusive), 277 to 287 (inclusive) and 289 to 292 (inclusive) and the
definitions referred to therein;
"P&O Princess Guarantee" means the deed poll guarantee of the same
date as the Equalization Agreement under which the Company agrees to
guarantee certain obligations of Carnival for the benefit of certain
future creditors of Carnival, as amended from time to time;
"P&O Princess Ordinary Shares" means ordinary shares in the capital of
the Company (and, in respect of Articles 125 and 128 only, will
include any class of share entitled to vote on the relevant
resolution), excluding the P&O Princess Special Voting Share and the
Equalization Share, and except with respect to any voting rights (as
described in Articles 147 and 148), on a Liquidation (as described in
Articles 272-276 inclusive) and rights on a Mandatory Exchange (as
described in Articles 289-292 inclusive), shall also include the
Disenfranchised P&O Ordinary Shares;
"P&O Princess Special Voting Share" means the special voting share in
the capital of the Company (having the rights set out in and referred
to in Article 19);
"P&O Princess SVC" means the holder, from time to time, of the P&O
Princess Special Voting Share;
"Qualifying Takeover Offer" means an offer or offers to acquire
Carnival Common Stock and P&O Princess Ordinary shares (i) which would
be in accordance with the provisions of the City Code to the extent
that the City Code applies to the Combined Group, and (ii) which:
(a) are made to all holders of Carnival Common Stock and P&O Princess
Ordinary Shares; and
(b) are undertaken with respect to the Carnival Common Stock and P&O
Princess Ordinary Shares at or about the same time; and
10
(c) comply with all Applicable Regulations, the Carnival Constitution
and these Articles; and
(d) each of the Board of Directors of Carnival and the 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 and the Board of Carnival 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 offers;
(4) the conditions to which the offer(s) is subject; and
(5) such other terms of the offer(s) which the Board and the
Board of Carnival shall determine are relevant.
"recognised person" means a recognised clearing house or a nominee of
a recognised clearing house or of a recognised investment exchange,
each of which terms having the meaning given to it by section 185(4)
of the Act;
"register" means the register of members of the Company;
"Regulations" means the Uncertificated Securities Regulations 2001;
"seal" means the common seal of the Company and includes any official
seal kept by the Company by virtue of section 39 or 40 of the Act;
"secretary" means the secretary of the Company and includes a joint,
assistant, deputy or temporary secretary and any other person
appointed to perform the duties of the secretary;
"Significant Combined Group Holder" means any person who, after
complying with the provisions of Articles 277 to 287, whether solely
or together with any party Acting in Concert with such person, 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 30 per cent. and
not more than 50 per cent. of the votes on a Joint Electorate Action
from time to time;
"Special Resolution" means, with respect to the Company or Carnival, a
resolution required by Applicable Regulations and/or the Carnival
Constitution or the Memorandum and these Articles, as relevant, to be
approved by a higher percentage of votes voted than required under an
ordinary resolution, or where the percentages of votes in favour and
against the resolution is required to be calculated by a different
mechanism to that required by an ordinary resolution;
11
"subsidiary" means with respect to the Company or Carnival, 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 company otherwise has the power to
direct;
"Substantive Resolution" means any resolution of the Company to be
considered at a general meeting other than a resolution of a procedural or
technical nature;
"Tax" means 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);
"Tax Benefit" means any credit, rebate, exemption or benefit in respect of
Tax available to any person;
"uncertificated share" means a share in the capital of the Company which is
recorded on the register as being held in uncertificated form and title to
which may, by virtue o the Regulations, be transferred by means of a
relevant system and references in these Articles to a share being held in
uncertificated form shall be construed accordingly;
"United Kingdom" means Great Britain and Northern Ireland; and
"Voting Agreement" means the deed entered into between the Company, P&O
Princess SVC, Carnival, Carnival SVC and Law Debenture and entitled SVC
Special Voting Deed, as amended or novated from time to time, and shall
include any deed entered into to replace that deed or any such replacement.
CONSTRUCTION
3. References to a document include, unless the context otherwise requires,
references to an electronic communication.
4. References to an electronic communication mean, unless the contrary is
stated, an electronic communication (as defined in the Act) comprising
writing.
5. References to a document being executed include references to its being
executed under hand or under seal or, in the case of an electronic
communication, by electronic signature.
6. References to an instrument mean, unless the contrary is stated, a written
document having tangible form and not comprised in an electronic
communication (as defined in the Act).
7. Where, in relation to a share, these Articles refer to a relevant system,
the reference is to the relevant system in which that share is a
participating security at the relevant time.
8. References to a notice or other document being sent to a person by the
Company include references to such notice or other document, or a copy of
such notice or other
12
document, being sent, given, delivered, issued or made available to, or
served on, that person by any method authorised by these Articles, and
sending shall be construed accordingly.
9. References to writing mean the representation or reproduction of words,
symbols or other information in a visible form by any method or combination
of methods, whether comprised in an electronic communication (as defined in
the Act) or otherwise, and written shall be construed accordingly.
10. Words denoting the singular number include the plural number and vice
versa; words denoting the masculine gender include the feminine gender; and
words denoting persons include corporations.
11. Words or expressions contained in these Articles which are not defined in
Article 2 but are defined in the Act have the same meaning as in the Act
(but excluding any modification of the Act not in force at the date of
adoption of these Articles) unless inconsistent with the subject or
context.
12. Words or expressions contained in these Articles which are not defined in
Article 2 but are defined in the Regulations have the same meaning as in
the Regulations (but excluding any modification of the Regulations not in
force at the date of adoption of these Articles) unless inconsistent with
the subject or context.
13. Subject to the preceding two paragraphs, references to any provision of any
enactment or of any subordinate legislation (as defined by section 21(1) of
the Interpretation Act 1978) include any modification or re-enactment of
that provision for the time being in force.
14. Headings and marginal notes are inserted for convenience only and do not
affect the construction of these Articles.
15. In these Articles, (a) powers of delegation shall not be restrictively
construed but the widest interpretation shall be given to them; (b) the
word Board or board in the context of the exercise of any power contained
in these Articles includes any validly appointed committee; (c) no power of
delegation shall be limited by the existence or, except where expressly
provided by the terms of delegation, the exercise of that or any other
power of delegation; and (d) except where expressly provided by the terms
of delegation, the delegation of a power shall not exclude the concurrent
exercise of that power by any other body or person who is for the time
being authorised to exercise it under these Articles or under another
delegation of the power.
SHARE CAPITAL
Share capital
16. The authorised share capital of the Company on the adoption of these
Articles is (Pounds)100,001 divided into 2 subscriber shares of (Pounds)1
each, 49,998 redeemable preference shares of (Pounds)1 each, one P&O
Princess Special Voting Share of (Pounds)1 and one Equalization Share of
(Pounds)50,000 and US$ [.] divided into [.] ordinary shares of US$ [.] each
and [.].
17. The two subscriber shares have no rights whatsoever, including without
limitation the right to receive notice, attend and vote at a general or
extraordinary meeting, the right
13
to receive dividends and the right to receive the payment of capital upon a
distribution of assets.
Return of Capital
18. If on any return of capital to a shareholder of the Company there is any
fraction of a cent, or pence as the case may be in respect of the amount
due to be paid to holder of any P&O Princess Ordinary Share, such fraction
shall, to the extent permitted by Applicable Regulations, be rounded up to
the nearest whole cent or pence as the case may be.
P&O Princess Special Voting Share
19. The P&O Princess Special Voting Share shall confer on the holder of such
share the relevant rights set out in these Articles, but shall cease to
confer any right to receive notice of, attend or vote at any general
meeting if either:
(a) the Equalization Agreement is terminated; or
(b) a resolution to terminate the Voting Agreement is approved by both
Carnival and the Company as a Class Rights Action.
20. On a distribution of assets of the Company on a Liquidation of the Company,
the P&O Princess Special Voting Share shall rank after the holders of
Ordinary Shares and redeemable preference shares but ahead of the
Equalization Share for repayment of any capital paid up or credited as paid
up and shall only be entitled to repayment of the nominal value paid up on
its share. The P&O Princess Special Voting Share shall not be entitled to
receive any dividends.
21. The rights attaching to the P&O Princess Special Voting Share may be varied
by a resolution approved as a Class Rights Action. Where the proposed
variation increases the obligations of the holder of the P&O Princess
Special Voting Share, such variation shall also require the consent of the
holder of the P&O Princess Special Voting Share.
21A. All P&O Princess Ordinary Shares acquired by any member of the Carnival
Group whether pursuant to the partial share offer by Carnival for up to 20
per cent. of the P&O Princess Ordinary Shares dated [?] or otherwise shall
automatically be reclassified on the day that such shares are registered in
the name of such member of the Carnival Group in the register of members of
the Company into disenfranchised Ordinary Shares ("Disenfranchised P&O
Ordinary Shares") which, save that the rights attached to such shares shall
not entitle the member holding such shares:
(a) to attend or vote at any general meeting or class meeting of the
Company unless at the relevant date the Carnival Group is interested
in 90 per cent. or more of the P&O Princess Ordinary Shares
(including for the purpose of such calculation the Disenfranchised
P&O Ordinary Shares); or
(b) to receive a Liquidation Distribution,
such Disenfranchised P&O Ordinary Shares shall otherwise rank pari passu in
all other respects with P&O Princess Ordinary Shares. Following the
transfer of any Disenfranchised P&O Ordinary Shares from the Carnival Group
to a person who is not a member of, or Acting in Concert with, the Combined
Group such
14
Disenfranchised P&O Ordinary Shares shall automatically be reclassified on
the day that such shares are, following such transfer, registered in the
register of members of the Company into P&O Princess Ordinary Shares.
Equalization Share
22. The Equalization Share shall:
(a) have no rights to receive notice of, attend or vote at any general
meeting of the Company;
(b) have rights to dividends as declared and paid by the Board as interim
dividends declared on that share from time to time; and
(c) on a distribution of assets of the Company on a Liquidation of the
Company, rank after all other holders of shares for repayment of any
capital paid up or credited as paid up.
Shares with special rights
23. Subject to the provisions of the Companies Acts and the provisions of
Articles 124 to 129 and without prejudice to any rights attached to any
existing shares or class of shares, any share may be issued with such
rights or restrictions as the Company may by ordinary resolution determine
or, subject to and in default of such determination, as the Board shall
determine.
Share warrants to bearer
24. Subject to the provisions of Articles 124 to 129, the Board may issue share
warrants to bearer in respect of any fully paid shares under a seal of the
Company or in any other manner authorised by the Board. Any share while
represented by such a warrant shall be transferable by delivery of the
warrant relating to it. In any case in which a warrant is so issued, the
Board may provide for the payment of dividends or other moneys on the
shares represented by the warrant by coupons or otherwise. The Board may
decide, either generally or in any particular case or cases, that any
signature on a warrant may be applied by mechanical means or printed on it
or that the warrant need not be signed by any person.
Conditions of issue of share warrants
25. The Board may determine, and from time to time vary, the conditions on
which share warrants to bearer shall be issued and, in particular, the
conditions on which:
(a) a new warrant or coupon shall be issued in place of one which has
been worn-out, defaced, lost or destroyed (but no new warrant shall
be issued unless the Company is satisfied beyond reasonable doubt
that the original has been destroyed); or
(b) the bearer shall be entitled to attend and vote at general meetings;
or
(c) a warrant may be surrendered and the name of the bearer entered in
the register in respect of the shares specified in the warrant.
15
The bearer of such a warrant shall be subject to the conditions for the
time being in force in relation to the warrant, whether made before or
after the issue of the warrant. Subject to those conditions and to the
provisions of the Companies Acts, the bearer shall be deemed to be a member
of the Company and shall have the same rights and privileges as he would
have if his name had been included in the register as the holder of the
shares comprised in the warrant.
No right in relation to share
26. The Company shall not be bound by or be compelled in any way to recognize
any right in respect of the share represented by a share warrant other than
the bearer's absolute right to the warrant.
Uncertificated shares
27. Subject to the provisions of the Regulations, the Board may permit the
holding of shares in any class of shares in uncertificated form and the
transfer of title to shares in that class by means of a relevant system and
may determine that any class of shares shall cease to be a participating
security.
Not separate class of shares
28. Shares in the capital of the Company that fall within a certain class shall
not form a separate class of shares from other shares in that class because
any share in that class:
(a) is held in uncertificated form; or
(b) is permitted in accordance with the Regulations to become a
participating security.
Exercise of Company's entitlements in respect of uncertificated shares
29. Where any class of shares is a participating security and the Company is
entitled under any provision of the Companies Acts, the Regulations or
these Articles to sell, transfer or otherwise dispose of, forfeit,
re-allot, accept the surrender of or otherwise enforce a lien over a share
held in uncertificated form, the Company shall be entitled, subject to the
provisions of the Companies Acts, the Regulations, these Articles and the
facilities and requirements of the relevant system:
(a) to require the holder of that uncertificated share by notice to
change that share into certificated form within the period specified
in the notice and to hold that share in certificated form so long as
required by the Company;
(b) to require the holder of that uncertificated share by notice to give
any instructions necessary to transfer title to that share by means
of the relevant system within the period specified in the notice;
(c) to require the holder of that uncertificated share by notice to
appoint any person to take any step, including without limitation the
giving of any instructions by means of the relevant system, necessary
to transfer that share within the period specified in the notice; and
(d) to take any action that the Board considers appropriate to achieve
the sale, transfer, disposal, forfeiture, re-allotment or surrender
of that share or
16
otherwise to enforce a lien in respect of that share, including
giving notice to any person that the share should be converted into
certificated form.
Section 80 authority
30. The Board has general and unconditional authority to exercise all the
powers of the Company to allot relevant securities up to an aggregate
nominal amount equal to the section 80 amount, for each prescribed period.
Section 89 disapplication
31. The Board is empowered for each prescribed period to allot equity
securities for cash pursuant to the authority conferred by Article 30 as if
section 89(1) of the Act did not apply to any such allotment, provided that
its power shall be limited to:
(a) the allotment of equity securities in connection with an issue in
favour of ordinary shareholders where the equity securities
respectively attributable to the interests of all ordinary
shareholders are proportionate (as nearly as practicable) to the
respective numbers of ordinary shares held by them, but subject to
such exclusions or other arrangements as the Board may deem necessary
or expedient in relation to fractional entitlements or any legal,
regulatory or practical problems under the laws or regulations of any
overseas territory or the requirements of any regulatory body or
stock exchange; and
(b) the allotment (otherwise than pursuant to Article 31) of equity
securities up to an aggregate nominal amount equal to the section 89
amount.
Allotment after expiry
32. Before the expiry of a prescribed period the Company may make an offer or
agreement which would or might require equity securities or other relevant
securities to be allotted after such expiry. The Board may allot equity
securities or other relevant securities in pursuance of that offer or
agreement as if the prescribed period during which that offer or agreement
was made had not expired.
Further Definitions
33. In Articles 30 to 33:
"prescribed period" means any period for which the authority conferred by
Article 30 is given by ordinary or special resolution stating the section
80 amount and/or the power conferred by Article 31 is given by special
resolution stating the section 89 amount;
"section 80 amount" means, for any prescribed period, the amount stated in
the relevant ordinary or special resolution; and
"section 89 amount" means, for any prescribed period, the amount stated in
the relevant special resolution.
Residual allotment powers
34. Subject to Articles 124 to 129, the provisions of the Companies Acts
relating to authority, pre-emption rights or otherwise and of any
resolution of the Company in
17
general meeting passed pursuant to those provisions, the provisions of
Articles 124 to 129 and, in the case of redeemable shares, the provisions
of Article 35:
(a) all unissued shares for the time being in the capital of the Company
shall be at the disposal of the Board; and
(b) the Board may allot (with or without conferring a right of
renunciation), grant options over, or otherwise dispose of them to
such persons on such terms and conditions and at such times as it
thinks fit.
REDEEMABLE SHARES
Redeemable shares
35. Subject to the provisions of the Companies Acts, and without prejudice to
any rights attached to any existing shares or class of shares, shares may
be issued which are to be redeemed or are to be liable to be redeemed at
the option of the Company on such terms and in such manner as may be
provided by these Articles.
Redeemable Preference Shares
36. The rights attaching to the redeemable preference shares are as follows:
Dividends
37. The holders of redeemable preference shares shall be entitled, in priority
to the holders of any other class of shares in the Company's share capital,
to receive out of the profits of the Company available for distribution and
resolved under the Articles to be distributed in respect of each financial
year of the Company a fixed cumulative preferential dividend (the
"Preference Dividend") at the rate of 8 per cent. per annum on the amount
for the time being paid up on each redeemable preference share held by them
respectively, save that no Preference Dividend shall accrue in respect of
any redeemable preference share not in issue.
38. The Preference Dividend shall accrue on a daily basis and shall be payable
annually in arrears on 31 December ("Annual Preference Dividend Payment
Date"), or if such date is not a Business Day, on the next following
Business Day, in respect of the year ending on that date. The first such
payment shall be made on the 31 December following the issue in respect of
the period from the date of the issue of the redeemable preference shares
concerned until such date. The Preference Dividend shall be paid to the
holders of the issued redeemable preference shares whose names appear on
the register at 12 noon on any date selected by the directors up to 42 days
before the relevant dividend payment date.
Capital
39. On a distribution of assets of the Company among its members on a winding
up or other return of capital (other than a redemption or purchase by the
Company of its own shares), the holders of the redeemable preference shares
shall rank behind the holders of Ordinary Shares but ahead of the holders
of any other classes of shares of the Company in relation to the payment of
any capital paid up or credited as paid up on each redeemable preference
share.
18
No further rights to dividends or capital
40. Save as provided in Articles 37, 38 and 39, the holders of the redeemable
preference shares shall not be entitled to any participation in the profits
or assets of the Company.
Voting
41. The holders of redeemable preference shares shall not have any rights to
vote.
Redemption
42. Subject to the Act, the Company shall have the right at any time to redeem
any redeemable preference shares (provided that they are credited as fully
paid) by giving to the registered holder written notice of its intention to
do so (the "Redemption Notice").
43. The Redemption Notice must specify the number of redeemable preference
shares to be redeemed, the amount payable on redemption and the date and
time (the "Redemption Date") and place in England at which:
(a) the share certificates in respect of the redeemable preference shares
must be delivered to the Company for cancellation; and
(b) the Company shall pay to the registered holders of the redeemable
preference shares to be redeemed the redemption money in respect of
such redeemable preference shares together with a sum equal to any
arrears and accruals of the Preference Dividend (whether accrued or
declared or not) and any interest payable calculated down to the date
of such repayment.
The holders of the redeemable preference shares to be redeemed shall be
bound by the Redemption Notice.
44. The amount to be paid on redemption of each redeemable preference share
shall equal the amount credited as paid up on it (including any share
premium) together with all arrears or accruals of the Preference Dividend
(whether accrued, declared or not) calculated up to and including the
Redemption Date and in the case of a partial redemption proportionately in
respect of each holding of redeemable preference shares.
45. The redeemable preference shares shall be redeemed on or before 31
December 2050 and if, in accordance with the Act, the redeemable preference
shares shall not on any such date be capable of being redeemed by the
Company, such redemption shall be effected as soon as possible after the
redeemable preference shares have become capable of being redeemed.
46. The Preference Dividend shall cease to accrue on any redeemable preference
shares, which are to be redeemed, on the Redemption Date.
47. If any holder of a redeemable preference share to be redeemed fails or
refuses to surrender the share certificate for such redeemable preference
share (or fails or refuses to accept the redemption money payable in
respect of it), the Company shall retain such money and hold it on trust
for such holder but without interest or further obligation whatever.
19
48. No redeemable preference share shall be redeemed otherwise than out of
distributable profits or the proceeds of a fresh issue of shares made for
the purposes of the redemption or out of capital to the extent permitted by
the Act but any premium payable on redemption shall be paid either out of
distributable profits, or to the extent permitted by law, out of the share
premium account of the Company.
49. No redeemable preference share redeemed by the Company shall be capable of
re-issue and on redemption of any redeemable preference shares the
directors may convert the authorised share capital created as a consequence
of such redemption into shares of any other class of share capital into
which the authorised share capital of the Company is or may at that time be
divided of a like nominal amount (as nearly as may be) as the shares of
such class then in issue or into unclassified shares of the same nominal
amount as the redeemable preference shares.
Commissions
50. The Company may exercise all powers of paying commissions or brokerage
conferred or permitted by the Companies Acts. Subject to the provisions of
the Companies Acts, any such commission or brokerage may be satisfied by
the payment of cash or by the allotment of fully or partly paid shares or
partly in one way and partly in the other.
Trusts not recognised
51. Except as required by law or as otherwise provided by these Articles, the
Company shall recognise no person as holding any share on any trust and
(except as otherwise provided by these Articles or by law) the Company
shall not be bound by or recognise any interest in any share (or in any
fractional part of a share) except the holder's absolute right to the
entirety of the share (or fractional part of the share).
VARIATION OF RIGHTS
Method of varying rights
52. Subject to the provisions of the Companies Acts and the provisions of
Articles 124 to 129, if at any time the capital of the Company is divided
into different classes of shares, the rights attached to any class may
(unless otherwise provided by the terms of allotment of the shares of that
class) be varied or abrogated, whether or not the Company is being wound
up, either:
(a) with the consent of the holders of three-quarters in nominal value of
the issued shares of the class, which consent shall be by means of
one or more instruments or contained in one or more electronic
communications sent to such address (if any) as may for the time
being be notified by or on behalf of the Company for that purpose or
a comombination of both; or
(b) with the sanction of an extraordinary resolution passed at a separate
general meeting of the holders of the shares of the class,
but not otherwise.
20
SHARE CERTIFICATES
Members' rights to certificates
53. Every member, on becoming the holder of any certificated share (except
a recognised person in respect of whom the Company is not required by
law to complete and have ready for delivery a certificate) shall be
entitled, without payment, to one certificate for all the certificated
shares of each class held by him (and, on transferring a part of his
holding of certificated shares of any class, to a certificate for the
balance of his holding of certificated shares). He may elect to receive
one or more additional certificates for any of his certificated shares
if he pays for every certificate after the first a reasonable sum
determined from time to time by the Board. Every certificate shall:
(a) be executed under the seal or otherwise in accordance with Article
222 or in such other manner as the Board may approve; and
(b) specify the number, class and distinguishing numbers (if any) of
the shares to which it relates and the amount or respective
amounts paid up on the shares.
54. The Company shall not be bound to issue more than one certificate for
certificated shares held jointly by more than one person and delivery
of a certificate to one joint holder shall be a sufficient delivery to
all of them. Shares of different classes may not be included in the
same certificate.
Replacement certificates
55. If a share certificate is defaced, worn out, lost or destroyed, it may
be renewed on such terms (if any) as to evidence and indemnity and
payment of any exceptional out-of-pocket expenses reasonably incurred
by the Company in investigating evidence and preparing the requisite
form of indemnity as the Board may determine but otherwise free of
charge, and (in the case of defacement or wearing out) on delivery up
of the old certificate.
LIEN
Company to have lien on shares
56. The Company shall have a first and paramount lien on every share (not
being a fully paid share) for all moneys payable to the Company
(whether presently or not) in respect of that share. The Board may at
any time (generally or in a particular case) waive any lien or declare
any share to be wholly or in part exempt from the provisions of this
Article. The Company's lien on a share shall extend to any amount
(including without limitation dividends) payable in respect of it.
Enforcement of lien by sale
57. The Company may sell, in such manner as the Board determines, any share
on which the Company has a lien if a sum in respect of which the lien
exists is presently payable and is not paid within 14 clear days after
notice has been sent to the holder of the share, or to the person
entitled to it by transmission, demanding payment and stating that if
the notice is not complied with the share may be sold.
21
Giving effect to sale
58. To give effect to that sale the Board may, if the share is a
certificated share, authorise any person to execute an instrument of
transfer in respect of the share sold to, or in accordance with the
directions of, the buyer. If the share is an uncertificated share, the
Board may exercise any of the Company's powers under Article 29 to
require the share to be changed into certificated form and to effect
the sale of the share to, or in accordance with the directions of, the
buyer. The buyer shall not be bound to see to the application of the
purchase money and his title to the share shall not be affected by any
irregularity in or invalidity of the proceedings in relation to the
sale.
Application of proceeds
59. The net proceeds of the sale, after payment of the costs, shall be
applied in or towards payment or satisfaction of so much of the sum in
respect of which the lien exists as is presently payable. Any residue
shall (if the share sold is a certificated share, on surrender to the
Company for cancellation of the certificate in respect of the share
sold and, whether the share sold is a certificated or uncertificated
share, subject to a like lien for any moneys not presently payable as
existed on the share before the sale) be paid to the person entitled to
the share at the date of the sale.
CALLS ON SHARES
Power to make calls
60. Subject to the terms of allotment, the Board may from time to time make
calls on the members in respect of any moneys unpaid on their shares
(whether in respect of nominal value or premium). Each member shall
(subject to receiving at least 14 clear days' notice specifying when
and where payment is to be made) pay to the Company the amount called
on his shares as required by the notice. A call may be required to be
paid by instalments. A call may be revoked in whole or part and the
time fixed for payment of a call may be postponed in whole or part as
the Board may determine. A person on whom a call is made shall remain
liable for calls made on him even if the shares in respect of which the
call was made are subsequently transferred.
Time when call made
61. A call shall be deemed to have been made at the time when the
resolution of the Board authorising the call was passed.
Liability of joint holders
62. The joint holders of a share shall be jointly and severally liable to
pay all calls in respect of it.
Interest payable
63. If a call or any instalment of a call remains unpaid in whole or in
part after it has become due and payable the person from whom it is due
and payable shall pay interest on the amount unpaid from the day it
became due and payable until it is paid. Interest shall be paid at the
rate fixed by the terms of allotment of the share or in the notice of
the call or, if no rate is fixed, the rate determined by the Board, not
exceeding 15 per cent. per annum, or, if higher, the appropriate rate
(as defined in the
22
Act), but the Board may in respect of any individual member waive
payment of such interest wholly or in part.
Deemed calls
64. An amount payable in respect of a share on allotment or at any fixed
date, whether in respect of nominal value or premium or as an
instalment of a call, shall be deemed to be a call duly made and
notified and payable on the date so fixed or in accordance with the
terms of the allotment. If it is not paid the provisions of these
Articles shall apply as if that amount had become due and payable by
virtue of a call duly made and notified.
Differentiation on calls
65. Subject to the terms of allotment, the Board may make arrangements on
the issue of shares for a difference between the allottees or holders
in the amounts and times of payment of calls on their shares.
Payment of calls in advance
66. The Board may, if it thinks fit, receive from any member all or any
part of the moneys uncalled and unpaid on any share held by him. Such
payment in advance of calls shall extinguish the liability on the share
in respect of which it is made to the extent of the payment. The
Company may pay on all or any of the moneys so advanced (until they
would but for such advance become presently payable) interest at such
rate agreed between the Board and the member not exceeding (unless the
Company by ordinary resolution otherwise directs) 15 per cent. per
annum or, if higher, the appropriate rate (as defined in the Act).
FORFEITURE AND SURRENDER
Notice requiring payment of call
67. If a call or any instalment of a call remains unpaid in whole or in
part after it has become due and payable, the Board may give to the
person from whom it is due not less than 14 clear days' notice
requiring payment of the amount unpaid together with any interest which
may have accrued and any costs, charges and expenses incurred by the
Company by reason of such non-payment. The notice shall name the place
where payment is to be made and shall state that if the notice is not
complied with the shares in respect of which the call was made will be
liable to be forfeited.
Forfeiture for non-compliance
68. If that notice is not complied with, any share in respect of which it
was given may, at any time before the payment required by the notice
has been made, be forfeited by a resolution of the Board. The
forfeiture shall include all dividends or other moneys payable in
respect of the forfeited share which have not been paid before the
forfeiture. When a share has been forfeited, notice of the forfeiture
shall be sent to the person who was the holder of the share before the
forfeiture. An entry shall be made promptly in the register opposite
the entry of the share showing that notice has been sent, that the
share has been forfeited and the date of forfeiture. No forfeiture
shall be invalidated by the omission or neglect to give that notice or
to make those entries.
23
Sale of forfeited shares
69. Subject to the provisions of the Companies Acts, a forfeited share
shall be deemed to belong to the Company and may be sold, re-allotted
or otherwise disposed of on such terms and in such manner as the Board
determines, either to the person who was the holder before the
forfeiture or to any other person. At any time before sale,
re-allotment or other disposal, the forfeiture may be cancelled on such
terms as the Board thinks fit. Where for the purposes of its disposal a
forfeited share held in certificated form is to be transferred to any
person, the Board may authorise any person to execute an instrument of
transfer of the share to that person. Where for the purposes of its
disposal a forfeited share held in uncertificated form is to be
transferred to any person, the Board may exercise any of the Company's
powers under Article 29. The Company may receive the consideration
given for the share on its disposal and may register the transferee as
holder of the share.
Liability following forfeiture
70. A person shall cease to be a member in respect of any share which has
been forfeited and shall, if the share is a certificated share,
surrender the certificate for any forfeited share to the Company for
cancellation. The person shall remain liable to the Company for all
moneys which at the date of forfeiture were presently payable by him to
the Company in respect of that share with interest on that amount at
the rate at which interest was payable on those moneys before the
forfeiture or, if no interest was so payable, at the rate determined by
the Board, not exceeding 15 per cent. per annum or, if higher, the
appropriate rate (as defined in the Act), from the date of forfeiture
until payment. The Board may waive payment wholly or in part or enforce
payment without any allowance for the value of the share at the time of
forfeiture or for any consideration received on its disposal.
Surrender
71. The Board may accept the surrender of any share which it is in a
position to forfeit on such terms and conditions as may be agreed.
Subject to those terms and conditions, a surrendered share shall be
treated as if it had been forfeited.
Extinction of rights
72. The forfeiture of a share shall involve the extinction at the time of
forfeiture of all interest in and all claims and demands against the
Company in respect of the share and all other rights and liabilities
incidental to the share as between the person whose share is forfeited
and the Company, except only those rights and liabilities expressly
saved by these Articles, or as are given or imposed in the case of past
members by the Companies Acts.
Evidence of forfeiture or surrender
73. A statutory declaration by a director or the secretary that a share has
been duly forfeited or surrendered on a specified date shall be
conclusive evidence of the facts stated in it as against all persons
claiming to be entitled to the share. The declaration shall (subject if
necessary to the execution of an instrument of transfer or transfer by
means of the relevant system, as the case may be) constitute a good
title to the share. The person to whom the share is disposed of shall
not be bound to see to the application of the purchase money, if any,
and his title to the share shall not be
24
affected by any irregularity in, or invalidity of, the proceedings in
reference to the forfeiture, surrender, sale, re-allotment or disposal
of the share.
TRANSFER OF SHARES
Form and execution of transfer of certificated share
74. The instrument of transfer of a certificated share may be in any usual
form or in any other form which the Board may approve. An instrument of
transfer shall be signed by or on behalf of the transferor and, unless
the share is fully paid, by or on behalf of the transferee. An
instrument of transfer need not be under seal.
Right to refuse Registration
75. The Board may, in its absolute discretion and without giving any
reason, refuse to register the transfer of a certificated share which
is not fully paid, provided that the refusal does not prevent dealings
in shares in the Company from taking place on an open and proper basis.
76. The Board shall decline to register any transfer of the P&O Princess
Special Voting Share unless the transfer has been approved in
accordance with, and the transferee complies with, the relevant
provisions of the Voting Agreement.
77. The Board shall refuse to register any transfer of the Equalization
Share unless such transfer is to a member of the Carnival Group or to a
trustee for the benefit of one or more members of the Carnival Group.
78. The Board may, in its absolute discretion, also refuse to register the
transfer of a certificated share unless the instrument of transfer:
(a) is lodged, duly stamped (if stampable), at the office or at
another place appointed by the Board accompanied by the
certificate for the share to which it relates and such other
evidence as the Board may reasonably require to show the right of
the transferor to make the transfer;
(b) is in respect of only one class of shares; and
(c) is in favour of not more than four transferees.
Transfers by recognised persons
79. In the case of a transfer of a certificated share by a recognised
person, the lodgement of a share certificate will only be necessary if
and to the extent that a certificate has been issued in respect of the
share in question.
Notice of refusal to register
80. If the Board refuses to register a transfer of a share, it shall send
the transferee notice of its refusal within two months after the date
on which the instrument of transfer was lodged with the Company or the
Operator-instruction was received, as the case may be.
25
Suspension of registration
81. The registration of transfers of shares or of transfers of any class of
shares may be suspended at such times and for such periods (not
exceeding 30 days in any year) as the Board may determine, except that
the Board may not suspend the registration of transfers of any
participating security without the consent of the Operator of the
relevant system.
No fee payable on registration
82. No fee shall be charged for the registration of any instrument of
transfer or other document relating to or affecting the title to a
share.
Retention of transfers
83. The Company shall be entitled to retain an instrument of transfer which
is registered, but an instrument of transfer which the Board refuses to
register shall be returned to the person lodging it when notice of the
refusal is given.
TRANSMISSION OF SHARES
Transmission
84. If a member dies, the survivor or survivors where he was a joint
holder, and his personal representatives where he was a sole holder or
the only survivor of joint holders, shall be the only persons
recognised by the Company as having any title to his interest. Nothing
in these Articles shall release the estate of a deceased member
(whether a sole or joint holder) from any liability in respect of any
share held by him.
Elections permitted
85. A person becoming entitled by transmission to a share may, on
production of any evidence as to his entitlement properly required by
the Board, elect either to become the holder of the share or to have
another person nominated by him registered as the transferee. If he
elects to become the holder he shall give notice to the Company to that
effect. If he elects to have another person registered and the share is
a certificated share, he shall execute an instrument of transfer of the
share to that person. If he elects to have himself or another person
registered and the share is an uncertificated share, he shall take any
action the Board may require (including without limitation the
execution of any document and the giving of any instruction by means of
a relevant system) to enable himself or that person to be registered as
the holder of the share. All the provisions of these Articles relating
to the transfer of shares apply to that notice or instrument of
transfer as if it were an instrument of transfer executed by the member
and the death or bankruptcy of the member or other event giving rise to
the transmission had not occurred.
Elections required
86. The Board may at any time send a notice requiring any such person to
elect either to be registered himself or to transfer the share. If the
notice is not complied with within 60 days, the Board may after the
expiry of that period withhold payment of all dividends or other moneys
payable in respect of the share until the requirements of the notice
have been complied with.
26
Rights of persons entitled by transmission
87. A person becoming entitled by transmission to a share shall, on
production of any evidence as to his entitlement properly required by
the Board and subject to the requirements of Articles 85 and 86, have
the same rights in relation to the share as he would have had if he
were the holder of the share, subject to Article 241. That person may
give a discharge for all dividends and other moneys payable in respect
of the share, but he shall not, before being registered as the holder
of the share, be entitled in respect of it to receive notice of, or to
attend or vote at, any meeting of the Company or to receive notice of
or to attend or vote at any separate meeting of the holders of any
class of shares in the capital of the Company.
ALTERATION OF SHARE CAPITAL
Alterations by ordinary resolution
88. Subject to Articles 124 to 129 and the provisions of the Equalization
Agreement, the Company may by ordinary resolution:
(a) increase its share capital by such sum to be divided into shares
of such amount as the resolution prescribes;
(b) consolidate and divide all or any of its share capital into shares
of larger amount than its existing shares;
(c) subject to the provisions of the Companies Acts, sub-divide its
shares, or any of them, into shares of smaller amount than is
fixed by the Memorandum and the resolution may determine that, as
between the shares resulting from the sub-division, any of them
may have any preference or advantage as compared with the others;
and
(d) cancel shares which, at the date of the passing of the resolution,
have not been taken or agreed to be taken by any person and
diminish the amount of its share capital by the amount of the
shares so cancelled.
New shares subject to these Articles
89. All shares created by ordinary resolution pursuant to Article 88 shall
be:
(a) subject to all the provisions of these Articles including, without
limitation, provisions relating to payment of calls, lien,
forfeiture, transfer and transmission; and
(b) ordinary shares, unless otherwise provided by these Articles, by
the resolution creating the shares or by the terms of allotment of
the shares.
Fractions arising
90. Whenever any fractions arise as a result of a consolidation or
sub-division of shares, the Board may on behalf of the members deal
with the fractions as it, in its absolute discretion, thinks fit. In
particular, without limitation, the Board may sell shares representing
fractions to which any members would otherwise become entitled to any
person (including, subject to the provisions of the Companies Acts, the
Company) and distribute the net proceeds of sale in due proportion
among those members. Where
27
the shares to be sold are held in certificated form the Board may authorise
some person to execute an instrument of transfer of the shares to, or in
accordance with the directions of, the buyer. Where the shares to be sold
are held in uncertificated form, the Board may do all acts and things it
considers necessary or expedient to rematerialize the shares into
certificated form and/or to effect the transfer of the shares to, or in
accordance with the directions of, the buyer. The buyer shall not be bound
to see to the application of the purchase moneys and his title to the
shares shall not be affected by any irregularity in, or invalidity of, the
proceedings in relation to the sale.
Power to reduce capital
91. Subject to Articles 124 to 129, the provisions of the Companies Acts, and
the provisions of the Equalization Agreement, the Company may by special
resolution reduce its share capital, capital redemption reserve and share
premium account in any way.
PURCHASE OF OWN SHARES
Power to purchase own shares
92. Subject to Articles 124 to 129, and in accordance with the provisions of
the Companies Acts and the provisions of the Equalization Agreement, and
without prejudice to any relevant special rights attached to any class of
shares, the Company may purchase any of its own shares of any class
(including without limitation redeemable shares) in any way and at any
price (whether at par or above or below par).
GENERAL MEETINGS
Types of general meeting
93. All general meetings of the Company other than annual general meetings
shall be called extraordinary general meetings. The Board shall convene and
the Company shall hold general meetings as annual general meetings in
accordance with the requirements of the Act.
Convening general meetings
94. The Board may call general meetings whenever and at such times and places
as it shall determine. On the requisition of members pursuant to the
provisions of the Companies Acts, the Board shall promptly convene an
extraordinary general meeting in accordance with the requirements of the
Companies Acts. If there are no directors of the Company at any time, any
two members of the Company may summon a meeting for the purpose of
appointing one or more directors.
Recipients of notice
95. Subject to the provisions of the Companies Acts, to the provisions of these
Articles and to any restrictions imposed on any shares, any notice of
general meeting shall be sent to all the members, to each of the directors
and to the auditors.
96. If the Company proposes to undertake a Joint Electorate Action or a Class
Rights Action:
28
(a) the Company shall immediately give notice to Carnival of the nature of
the Joint Electorate Action or the Class Rights Action it proposes to
take; and
(b) the Board shall convene a general meeting for the purpose of
considering the Joint Electorate Action or Class Rights Action to be
held as close in time as practicable with the Parallel General Meeting
convened by Carnival for the purposes of considering that Joint
Electorate Action or Class Rights Action.
97. If the Company receives notice that Carnival proposes to undertake a Joint
Electorate Action or Class Rights Action, the directors shall convene a
general meeting for the purposes of considering that Joint Electorate
Action or Class Rights Action, such meeting to be held as close in time as
practicable with the Parallel General Meeting and shall propose a
resolution which is an Equivalent Resolution to the Carnival Joint
Electorate Action or Class Rights Action.
98. The Company shall co-operate fully with Carnival in the preparation of any
information or material required in connection with any general meeting to
consider a proposed Joint Electorate Action or Class Rights Action.
NOTICE OF GENERAL MEETINGS
Period of notice
99. An annual general meeting and an extraordinary general meeting called for
the passing of a special resolution shall be called by at least 21 clear
days' notice. All other extraordinary general meetings shall be called by
at least 14 clear days' notice.
Contents of notice: general
100. The notice shall specify the time and place of the meeting (including
without limitation any satellite meeting place arranged for the purposes of
Article 103, which shall be identified as such in the notice) and the
general nature of that business.
Contents of notice: additional requirements
101. In the case of an annual general meeting, the notice shall specify the
meeting as such. In the case of a meeting to pass a special or
extraordinary resolution, the notice shall specify the intention to propose
the resolution as a special or extraordinary resolution, as the case may
be. The notice shall also state whether the resolution relates to a Joint
Electorate Action or a Class Rights Action.
Article 105 arrangements
102. The notice shall include details of any arrangements made for the
purpose of Article 105 making clear that participation in those
arrangements will not amount to attendance at the meeting to which the
notice relates.
General meetings at more than one place
103. The Board may resolve to enable persons entitled to attend a general
meeting to do so by simultaneous attendance and participation at a
satellite meeting place anywhere in the world. The members present in
person or by proxy at satellite meeting places shall be counted in the
quorum for, and entitled to vote at, the general meeting in question, and
that meeting shall be duly constituted and its proceedings valid if the
29
chairman of the general meeting is satisfied that adequate facilities are
available throughout the general meeting to ensure that members attending
at all the meeting places are able to:
(a) participate in the business for which the meeting has been convened;
(b) hear and see all persons who speak (whether by the use of microphones,
loudspeakers, audio-visual communications equipment or otherwise) in
the principal meeting place and any satellite meeting place; and
(c) be heard and seen by all other persons so present in the same way, and
the meeting shall be deemed to take place at the principal meeting
place.
Interruption or adjournment where facilities inadequate
104. If it appears to the chairman of the general meeting that the facilities at
the principal meeting place or any satellite meeting place have become
inadequate for the purposes referred to in Article 103, then the chairman
may, without the consent of the meeting, interrupt or adjourn the general
meeting. All business conducted at that general meeting up to the time of
that adjournment shall be valid. The provisions of Article 119 shall apply
to that adjournment.
Other arrangements for viewing/hearing proceedings
105. The Board may make arrangements for persons entitled to attend a general
meeting or an adjourned general meeting to be able to view and hear the
proceedings of the general meeting or adjourned general meeting and to
speak at the meeting (whether by the use of microphones, loudspeakers,
audio-visual communications equipment or otherwise) by attending at a venue
anywhere in the world not being a satellite meeting place. Those attending
at any such venue shall not be regarded as present at the general meeting
or adjourned general meeting and shall not be entitled to vote at the
meeting at or from that venue. The inability for any reason of any member
present in person or by proxy at such a venue to view or hear all or any of
the proceedings of the meeting or to speak at the meeting shall not in any
way affect the validity of the proceedings of the meeting.
Controlling level of attendance
106. The Board may from time to time make any arrangements for controlling the
level of attendance at any venue for which arrangements have been made
pursuant to Article 105 (including without limitation the issue of tickets
or the imposition of some other means of selection) which it in its
absolute discretion considers appropriate, and may from time to time change
those arrangements. If a member, pursuant to those arrangements, is not
entitled to attend in person or by proxy at a particular venue, he shall be
entitled to attend in person or by proxy at any other venue for which
arrangements have been made pursuant to Article 105. The entitlement of any
member to be present at such venue in person or by proxy shall be subject
to any such arrangement then in force and stated by the notice of meeting
or adjourned meeting to apply to the meeting.
30
Change in place and/or time of meeting
107. If, after the sending of notice of a general meeting but before the meeting
is held, or after the adjournment of a general meeting but before the
adjourned meeting is held (whether or not notice of the adjourned meeting
is required), the Board decides that it is impracticable or unreasonable
for a reason beyond its control to hold the meeting at the declared place
(or any of the declared places, in the case of a meeting to which Article
103 applies) and/or time, it may change the place (or any of the places, in
the case of a meeting to which Article 103 applies) and/or postpone the
time at which the meeting is to be held. If such a decision is made, the
Board may then change the place (or any of the places, in the case of a
meeting to which Article 103 applies) and/or postpone the time again if it
decides that it is reasonable to do so. In either case:
(a) no new notice of the meeting need be sent, but the Board shall, if
practicable, advertise the date, time and place of the meeting in at
least two newspapers having a national circulation and shall make
arrangements for notices of the change of place and/or postponement to
appear at the original place and/or at the original time; and
(b) a proxy appointment in relation to the meeting may, if by means of an
instrument, be delivered to the office or to such other place within
the United Kingdom as may be specified by or on behalf of the Company
in accordance with Article 165(a) or, if contained in an electronic
communication, be received at the address (if any) specified by or on
behalf of the Company in accordance with Article 165(b), at any time
not less than 48 hours before any postponed time appointed for holding
the meeting; and
(c) any valid proxy duly delivered to the Company in respect of a meeting
which is postponed in accordance with these Articles shall be valid
and subsisting in respect of that meeting when held notwithstanding
that the time and/or place for the meeting changes unless expressly
provided otherwise in the relevant proxy.
Meaning of participate
108. For the purposes of Articles 103 to 107, the right of a member to
participate in the business of any general meeting shall include, without
limitation, the right to speak, vote on a show of hands (to the extent
applicable), vote on a poll, be represented by a proxy and have access to
all documents which are required by the Companies Acts or these Articles to
be made available at the meeting.
Accidental omission to give notice etc.
109. The accidental omission to send a notice of a meeting, or to send any
notification where required by the Companies Acts or these Articles in
relation to the publication of a notice of meeting on a website, or to send
a form of proxy where required by the Companies Acts or these Articles, to
any person entitled to receive it, or the non-receipt for any reason of any
such notice or notification or form of proxy by that person, whether or not
the Company is aware of such omission or non-receipt, shall not invalidate
the proceedings at that meeting.
31
Security
110. The Board and, at any general meeting, the chairman may make any
arrangement and impose any requirement or restriction it or he considers
appropriate to ensure the security of a general meeting including, without
limitation, requirements for evidence of identity to be produced by those
attending the meeting, the searching of their personal property and the
restriction of items that may be taken into the meeting place. The Board
and, at any general meeting, the chairman are entitled to refuse entry to a
person who refuses to comply with these arrangements, requirements or
restrictions.
PROCEEDINGS AT GENERAL MEETINGS
Quorum
111. No business shall be transacted at any general meeting unless a quorum is
present, but the absence of a quorum shall not preclude the choice or
appointment of a chairman, which shall not be treated as part of the
business of the meeting. Save as otherwise provided by these Articles and
subject to Articles 112 and 130, three Members Present in person or by
proxy and entitled to vote on the business to be transacted shall be a
quorum (and for the avoidance of doubt, the holder of the P&O Princess
Special Voting Share shall be treated as being entitled to vote for the
purposes of determining whether a quorum exists notwithstanding the
operation of Articles 125 and 131).
112. Where a Joint Electorate Action or a Class Rights Action is to be
considered at the general meeting, one of the Members Present must be the
holder of the P&O Princess Special Voting Share. Notwithstanding the
provisions of Article 111, no resolution will be approved as a Joint
Electorate Action unless one third of the total votes capable of being cast
by (i) the holders of the P&O Princess Ordinary Shares, and (ii) the holder
of the P&O Princess Special Voting Share (assuming all holders of
outstanding Carnival Common Stock vote at the Parallel General Meeting),
are cast on the resolution proposing such Joint Electorate Action.
113. For the purposes of Article 112, (i) votes which a holder of P&O Princess
Ordinary Shares specifically elects to abstain from voting in accordance
with Article 148; and (ii) votes which the P&O Princess Special Voting
Share carries as abstentions in accordance with Article 129 shall in each
case be counted as having been "cast".
If quorum not present
114. If such a quorum is not present within five minutes (or such longer time
not exceeding 60 minutes as the chairman of the meeting may decide to wait)
from the time appointed for the meeting, or if during a meeting such a
quorum ceases to be present, the meeting, if convened on the requisition of
members, shall be dissolved, and in any other case shall stand adjourned to
such time and place as the chairman of the meeting may determine. The
adjourned meeting shall be dissolved if a quorum is not present within 15
minutes after the time appointed for holding the meeting.
Chairman
115. The chairman, if any, of the Board or, in his absence, any deputy chairman
of the Board or, in his absence, some other director nominated by the
Board, shall preside as
32
chairman of the meeting. If neither the chairman, deputy chairman nor any
such other director is present within thirty minutes after the time
appointed for holding the meeting or is not willing to act as chairman, the
directors present shall elect one of their number to be chairman. If there
is only one director present and willing to act, he shall be chairman. If
no director is willing to act as chairman, or if no director is present
within thirty minutes after the time appointed for holding the meeting, the
members present and entitled to vote shall choose one of their number to be
chairman.
Directors entitled to attend and speak
116. A director shall, notwithstanding that he is not a member, be entitled to
attend and speak at any general meeting and at any separate meeting of the
holders of any class of shares in the capital of the Company.
Adjournments: chairman's powers
117. The chairman may, with the consent of a meeting at which a quorum is
present (and shall if so directed by the meeting), adjourn the meeting from
time to time and from place to place. No business shall be transacted at an
adjourned meeting other than business which might properly have been
transacted at the meeting had the adjournment not taken place. In addition
(and without prejudice to the chairman's power to adjourn a meeting
conferred by Article 104), the chairman may adjourn the meeting to another
time and place without such consent if it appears to him that:
(a) any amendment to a Substantive Resolution has been approved at the
meeting;
(b) it is likely to be impracticable to hold or continue that meeting
because of the number of members wishing to attend who are not
present; or
(c) the unruly conduct of persons attending the meeting prevents or is
likely to prevent the orderly continuation of the business of the
meeting; or
(d) an adjournment is otherwise necessary so that the business of the
meeting may be properly conducted; or
(e) notice is received of any adjournment of the Parallel General Meeting.
118. In determining whether to adjourn the meeting under Article 117, the
chairman shall have regard to the Company's obligations under Articles 106
and 109 and the impact of any adjournment on the Parallel General Meeting
(if any).
Adjournments: procedures
119. Any such adjournment may be for such time and to such other place (or, in
the case of a meeting held at a principal meeting place and a satellite
meeting place, such other places) as the chairman may, in his absolute
discretion, determine, notwithstanding that by reason of such adjournment
some members may be unable to be present at the adjourned meeting. Any such
member may nevertheless appoint a proxy for the adjourned meeting either in
accordance with Article 163 or by means of an instrument which, if
delivered by him at the meeting which is adjourned to the chairman or the
secretary or any director, shall be valid even though it is given at less
notice than would otherwise be required by Article 165(a). When a meeting
is adjourned for 30 days or more or for an indefinite period, notice shall
be sent at least seven clear days
33
before the date of the adjourned meeting specifying the time and place (or
places, in the case of a meeting to which Article 103 applies) of the
adjourned meeting and the general nature of the business to be transacted.
Otherwise it shall not be necessary to send any notice of an adjournment or
of the business to be transacted at an adjourned meeting.
120. The Company shall as soon as possible give notice to Carnival of an
adjournment and of the business to be transacted at an adjourned meeting.
Class meetings
121. Subject to Articles 122 and 123 below, all provisions of these Articles
relating to general meetings of the Company shall, mutatis mutandis, apply
to every separate general meeting of the holders of any class of shares in
the capital of the Company, except that:
(a) the necessary quorum shall be two or more persons holding or
representing by proxy at least one-third in nominal value of the
issued shares of the class or, at any adjourned meeting of such
holders, one holder present in person or by proxy, whatever the amount
of his holding, who shall be deemed to constitute a meeting;
(b) any holder of shares of the class present in person or by proxy may
demand a poll; and
(c) each holder of shares of the class shall, on a poll, be entitled to
such aggregate number of votes as are attached to every share of the
class held by him.
122. Any separate class meeting of the holder of the P&O Princess Special Voting
Share shall take effect by written resolution.
123. Any separate class meeting of the holder of the Equalization Share shall
take effect by written resolution.
VOTING RIGHTS AND PROCEDURES UNDER THE EQUALIZATION AGREEMENT
Class Rights Actions
124. The following actions constitute Class Rights Actions:
(a) the voluntary Liquidation of the Company or Carnival for which the
approval of the members is required by Applicable Regulations or
proposed other than a voluntary Liquidation of both the Company and
Carnival 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;
(b) the sale, lease, exchange or other disposition of all or substantially
all of the assets of either Carnival or the Company, 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
34
assets disposed of and not as a 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;
(c) any adjustment to the Equalization Ratio otherwise than in accordance
with the provisions of the Equalization Agreement;
(d) except where specifically provided for in the relevant agreements, any
amendment to the terms of, or termination of, the Equalization
Agreement, the Voting Agreement, the P&O Princess Guarantee or the
Carnival Guarantee (including, for the avoidance of doubt, the
voluntary termination of either the P&O Princess Guarantee or the
Carnival Guarantee);
(e) any amendment to, or removal of, or alteration of the effect of (which
shall include the ratification of any breach of) any P&O Princess
Entrenched Provision or any Carnival Entrenched Provision;
(f) 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 of Carnival 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 to occur; and
(g) the doing of anything which the Board and the Board of Carnival agree
(either in a particular case or generally), in their absolute
discretion, should be approved as a Class Rights Action.
Notwithstanding anything to the contrary contained in these Articles, none
of the foregoing actions may be undertaken by the Company unless it has
been approved as a Class Rights Action in accordance with Article 125.
Class Rights Action Procedure
125. If the Company proposes to take any Class Rights Action or is required to
put a resolution pursuant to Article 97:
(a) such action (either by the Company or by Carnival) shall require
approval by an ordinary resolution (or, if required by these Articles
or Applicable Regulations, by a Special Resolution) passed at a
general meeting of the members of the Company in relation to which the
holders of P&O Princess Ordinary Shares and the holder of the P&O
Princess Special Voting Share shall be entitled to vote as a single
class on a poll; and
(b) in relation to such resolution:
(i) if the proposed action is approved by the requisite majority (as
determined in accordance with the Carnival Constitution and
Applicable Regulations) of the holders of Carnival Common Stock
entitled to vote thereon at the Parallel General Meeting, the P&O
Princess Special Voting Share shall have no votes; and
(ii) if the proposed action is not approved by the holders of Carnival
Common Stock (on the basis described in Article 125(b)(i) above)
at
35
the Parallel General Meeting, the P&O Princess Special Voting
Share shall vote as follows:
(x) if the resolution needs to be passed at the Company's general
meeting by an ordinary resolution, the P&O Princess 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 an ordinary
resolution if the total votes capable of being cast by the issued
P&O Princess Ordinary Shares and other class of shares of P&O
Princess that are entitled to vote pursuant to Applicable
Regulations and/or the P&O Princess Memorandum and Articles
(including the P&O Princess Special Voting Share) were cast in
favour of the resolution at the Company's general meeting; and
(y) if the resolution needs to be passed at the Company's general
meeting by a special (or extraordinary) resolution, then the P&O
Princess 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 (less one vote) as would be
necessary to defeat a special (or extraordinary) resolution if
the total votes capable of being cast by the issued P&O Princess
Ordinary Shares and the other class of shares of P&O Princess
that are entitled to vote pursuant to Applicable Regulations
and/or the P&O Princess Memorandum and Articles (including the
P&O Princess Special Voting Share) were cast in favour of the
resolution at the Company's general meeting.
Joint Electorate Actions
126. All actions put to the holders of P&O Princess Ordinary Shares or Carnival
Common Stock, except for Class Rights Actions and resolutions of a
procedural or technical nature (described in Article 131 below) shall
constitute Joint Electorate Actions. For the avoidance of doubt, the
following actions, if put to the holders of P&O Princess Ordinary Shares or
Carnival Common Stock, shall constitute Joint Electorate Actions:
(a) the appointment, removal or re-election of any director of the Company
or Carnival, or both of them;
(b) to the extent such receipt or adoption is required by Applicable
Regulations, the receipt or adoption of the financial statements of
the Company or Carnival, or both of them, or accounts prepared on a
combined basis, other than any accounts in respect of the period(s)
ended prior to the date of the Equalization Agreement;
(c) a change of name of either the Company or Carnival, or both of them;
and
(d) the appointment or removal of the auditors of either the Company or
Carnival, or both of them.
127. If a particular matter falls both within Articles 124 and 126, then it
shall be treated as a Class Rights Action falling exclusively within
Article 124.
36
Joint Electorate Action Procedure
128. If the Company proposes to take any Joint Electorate Action or is required
to propose a resolution pursuant to Article 97, such action (either by the
Company or by Carnival) shall require approval by ordinary resolution (or,
if required by these Articles or Applicable Regulations, approval by a
Special Resolution) of the holders of the P&O Princess Ordinary Shares and
the holder of the P&O Princess Special Voting Share, voting as a single
class.
129. In relation to a resolution of the Company to approve a Joint Electorate
Action, the P&O Princess Special Voting Share shall carry:
(a) such number of votes in favour of the resolution as were cast in
favour of the Equivalent Resolution at the Parallel Shareholder
Meeting; and
(b) such number of votes against the resolution as were cast against the
Equivalent Resolution at the Parallel Shareholder Meeting; and
(c) solely for the purposes of Article 112, such number of abstentions as
is equivalent to the number of votes which holders of Carnival Common
Stock have specifically elected to abstain from the Equivalent
Resolution at the Parallel Shareholder Meeting in accordance with the
Carnival Constitution and/or Applicable Regulations,
in each case divided by the Equalization Fraction in effect at the time
such general meeting of the Company is held and in each case rounded up to
the nearest whole number, such votes to be cast by the holder of the P&O
Princess Special Voting Share in accordance with the above provisions.
Resolutions Generally
130. No resolution to approve a Class Rights Action or a Joint Electorate Action
shall be approved unless the Parallel General Meeting of Carnival is
validly held and a vote of the holders of Carnival Common Stock is held on
an Equivalent Resolution.
131. The P&O Princess Special Voting Share shall have no right to vote on any
resolution of a procedural or technical nature put to a general meeting of
the Company provided it has no adverse effect on the holders of Carnival
Common Stock in any material respect. Resolutions of a procedural or
technical nature will not be included in any notice of general meeting to
the Company's shareholders. The Chairman will, in his absolute discretion,
determine whether a resolution is of a procedural or technical nature.
Subject to the foregoing, without limitation, the following resolutions
shall constitute resolutions of a procedural or technical nature:
(a) that certain people be allowed to attend or excluded from attending
the Company's general meeting;
(b) that discussion be closed and the question put to the vote (provided
no amendments have been raised);
(c) that the question under discussion not be put to the vote;
(d) to proceed to the next item of business;
37
(e) to proceed with matters in an order other than that set out in the
notice of the meeting;
(f) to adjourn the debate (for example, to a subsequent meeting); and
(g) to adjourn the general meeting.
Methods of voting
132. Every resolution put to the vote of a general meeting on which the holder
of the P&O Princess Special Voting Share is or may be entitled to vote
shall be decided on a poll.
133. Subject to Article 132, any resolution to be put to the vote of a general
meeting shall be decided on a show of hands unless, before or on the
declaration of the result of a vote on the show of hands or on the
withdrawal of any other demand for a poll, a poll is duly demanded. Subject
to the provisions of the Companies Acts, a poll may be demanded by:
(a) the chairman of the meeting; or
(b) at least five Members Present in person or by proxy having the right
to vote at the meeting; or
(c) any member or Members Present in person or by proxy representing not
less than one-tenth of the total voting rights of all the members
having the right to vote at the meeting; or
(d) any member or Members Present in person or by proxy holding shares
conferring a right to vote at the meeting being shares on which an
aggregate sum has been paid up equal to not less than one-tenth of the
total sum paid up on all the shares conferring that right.
134. A demand by a person as proxy for a member shall be the same as a demand by
the member.
Declaration of result in the absence of a poll
135. Unless a poll is required pursuant to Article 132 or is duly demanded
pursuant to Article 133 (and the demand is not withdrawn before the poll is
taken) a declaration by the chairman that a resolution has been carried or
carried unanimously, or by a particular majority, or lost, or not carried
by a particular majority shall be conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in favour of or
against the resolution.
Procedure on a poll
136. A poll on a resolution on which the holder of the P&O Princess Special
Voting Share is or may be entitled to vote shall be kept open for such time
as to allow the Parallel General Meeting to be held and for the votes
attaching to the P&O Princess Special Voting Share to be calculated and
cast on such poll.
137. A poll shall, subject to Article 136, be taken in such manner as the
chairman directs. He may appoint scrutineers, who need not be members, and
may fix a time and place
38
for declaring the result of the poll. The result of the poll is deemed to
be the resolution of the meeting at which the poll is demanded.
138. A poll shall be taken at such time and place as the chairman decides,
either at once or after an interval or adjournment (but not more than 30
clear days after the date of the demand).
139. The chairman may determine that any poll may close at different times for
different classes of shareholder or for different shareholders of the same
class entitled to vote on the relevant resolution.
140. No notice need be given of a poll not taken immediately if the time and
place at which it is to be taken are announced at the meeting at which it
is demanded. In any other case at least seven clear days' notice shall be
given specifying the time and place at which the poll is to be taken.
141. A demand for a poll may be withdrawn but only with the consent of the
chairman. A demand withdrawn in this way validates the result of a show of
hands declared before the demand is made. If a poll is demanded before the
declaration of the result of a show of hands and the demand is duly
withdrawn, the meeting shall continue as if the demand has not been made.
If the demand for a poll is withdrawn, the chairman or any other member
entitled may demand a poll.
142. The requirement for a poll (whether automatic or on demand) does not
prevent the meeting continuing for the transaction of business other than
the question on which a poll is to be held.
143. On a poll, votes may be given in person or by proxy and a member entitled
to more than one vote need not, if he votes, use all his votes or cast all
the votes he uses in the same way, whether present in person or by proxy.
144. The chairman shall determine any dispute as to the admission or rejection
of a vote and such determination made in good faith shall be final and
conclusive.
Effectiveness of special and extraordinary resolutions
145. Where for any purpose an ordinary resolution of the Company is required, a
special or extraordinary resolution shall also be effective. Where for any
purpose an extraordinary resolution is required, a special resolution shall
also be effective.
146. [Intentionally left blank]
VOTING RIGHTS AND PROCEDURES
Right to vote
147. Subject to any special terms as to voting on which shares have been
allotted or issued, or a suspension or abrogation of voting rights pursuant
to the Articles, at a general meeting or meeting of members of a class
every Member Present has on a show of hands one vote and has on a poll:
(a) one vote for each fully paid P&O Princess Ordinary Share; and
39
(b) in the case of a partly paid share, that fraction of a vote equivalent
to the proportion which the amount paid up (not credited) on that
member's share bears to the total amount paid and payable for that
share (excluding amounts credited). Amounts paid in advance of a call
shall be ignored when calculating the proportion; and
(c) in the case of the P&O Princess Special Voting Share, such number of
votes as are determined in accordance with Articles 125, 129 and 131.
148. On a poll, every Member Present may cast the votes attaching to his
Ordinary Shares either for or against the resolution or may specifically
elect to abstain from voting, in which case his vote shall, subject to
Article 112, neither be counted as a vote in favour or against such
resolution.
Votes of joint holders
149. In the case of joint holders of a share, the vote of the senior who tenders
a vote, whether in person or by proxy, shall be accepted to the exclusion
of the votes of he other joint holders. For this purpose seniority shall be
determined by the order in which the names of the holders stand in the
register.
Member under incapacity
150. A member in respect of whom an order has been made by a court or official
having jurisdiction (whether in the United Kingdom or elsewhere) in matters
concerning mental disorder may vote, whether on a show of hands or on a
poll, by his receiver, curator bonis or other person authorised for that
purpose appointed by that court or official. That receiver, curator bonis
or other person may, on a poll, vote by proxy. The right to vote shall be
exercisable only if evidence satisfactory to the Board of the authority of
the person claiming to exercise the right to vote has been deposited at the
office, or at another place specified in accordance with these Articles for
the delivery of proxy appointments, not less than 48 hours before the time
appointed for holding the meeting or adjourned meeting at which the right
to vote is to be exercised.
Calls in arrears
151. No member shall be entitled to vote at a general meeting or at a separate
meeting of the holders of any class of shares in the capital of the
Company, either in person or by proxy, in respect of any share held by him
unless all moneys presently payable by him in respect of that share have
been paid.
Errors in voting
152. If any votes are counted which ought not to have been counted, or might
have been rejected, the error shall not vitiate the result of the voting
unless it is pointed out at the same meeting, or at any adjournment of the
meeting, and, in the opinion of the chairman (in his absolute discretion),
it is of sufficient magnitude to vitiate the result of the voting.
Objection to voting
153. No objection shall be raised to the qualification of any voter except at
the meeting or adjourned meeting or poll at which the vote objected to is
tendered. Every vote not
40
disallowed at such meeting shall be valid and every vote not counted which
ought to have been counted shall be disregarded. Any objection made in due
time shall be referred to the chairman whose decision shall be final and
conclusive.
Disclosure Notice
154. The directors may by notice in writing (a "Disclosure Notice") require any
member or other person Appearing to be Interested or Appearing to have been
Interested in the Ordinary Shares to disclose to the Company in writing
such information as directors require relating to the ownership of, or
Interests in, the Ordinary Shares in question as lies within the knowledge
of such member or other person (supported, if the directors so require, by
a statutory declaration and/or by such independent evidence as the
directors reasonably require) including:
(a) any information which the Company is entitled to seek pursuant to Part
VI of the Act; and
(b) any information which the directors shall deem necessary or desirable
in order to determine whether any Ordinary Shares are Combined Group
Restricted Shares.
The directors may give a Disclosure Notice at any time and may give one or
more notices to the same members or other person in respect of the same
Ordinary Shares.
Failure to comply with Disclosure Notice
155. If any member or any other person Appearing to be Interested in Ordinary
Shares has been served with a Disclosure Notice or a notice under Section
212 of the Act and has failed to supply the Company with the information
required within 14 days from the date of service of the notice (or, such
other period of time as the directors may, in their absolute discretion,
prescribe in the notice), then the directors may, in their absolute
discretion, at any time thereafter by notice (a "Direction Notice") to such
member direct that in respect of the Ordinary Shares in relation to which
the default occurred (the "Default Shares") the member shall not be
entitled to vote either personally or by proxy at a general meeting of the
Company or to exercise any other right conferred by membership in relation
to general meetings of the Company or meetings of the holders of any class
of shares of the Company. The Company shall send to each other person
Appearing to be Interested in Ordinary Shares which are the subject of a
Direction Notice a copy of the notice, but the failure or omission by the
Company to do so shall not invalidate such notice. Any Direction Notice
shall have effect, in accordance with its terms, for so long as the default
in respect of which the Direction Notice was issued continues. The
Direction Notice shall cease to have effect five days after confirmation by
the Company that the information required by the Disclosure Notice has been
provided to the Company.
Additional directions
156. Where the Default Shares represent at least 0.25 per cent. in nominal value
of the issued shares of that class then the Direction Notice may
additionally direct:
(a) that any dividend or other money (or shares instead of such amount)
payable in respect of the Default Shares shall (in whole or part) be
retained by the
41
Company without any liability to pay interest on it when it is finally
paid to the member; and/or
(b) that no transfer of any Default Shares held by such member shall be
registered unless:
(i) the member is not in default as regards supplying the
information required;
(ii) the member proves to the satisfaction of the directors that no
person in default as regards supplying such information is
Interested in any of the Ordinary Shares which are the subject
of the transfer;
(iii) registration of the transfer is required by the Regulations; or
(iv) the transfer is an approved transfer if:
(A) it is a transfer of shares pursuant to an acceptance of a
takeover offer (within the meaning of section 428(1) of the
Act); or
(B) the Board is satisfied that the transfer is made pursuant
to a sale of the shares the subject of the transfer to a
party unconnected with the member and with any other person
appearing to be interested in the shares; or
(C) the transfer results from a sale made through a recognised
investment exchange as defined in the Financial Services
and Markets Act 2000 or any other stock exchange outside
the United Kingdom on which the Company's shares are
normally traded.
Additional Shares
157. Any new Ordinary Shares in the Company issued in right of Default Shares
shall be subject to the same sanctions as apply to the Default Shares, and
the directors may make any right to an allotment of new Ordinary Shares
subject to sanctions corresponding to those which will apply to those
Ordinary Shares on issue, provided that:
(a) any sanctions applying to, or to a right to, new Ordinary Shares by
virtue of this Article 157 shall cease to have effect when the
sanctions applying to the related Default Shares cease to have effect
(and shall be suspended or cancelled if and to the extent that the
sanctions applying to the related Default Shares are suspended or
cancelled); and
(b) Article 154 shall apply to the exclusion of this Article 157 if the
Company issues a separate Disclosure Notice in respect of the new
shares.
Section 216 of the Act
158. The provisions of Article 157 are without prejudice to the provisions of
section 216 of the Act and, in particular, the Company may apply to the
court under section 216(1) of the Act whether or not the provisions of
Article 157 have been applied.
42
Conversion of uncertificated shares
159. The Company may exercise any of its powers under Article 29 in respect of
any Default Shares that are held in uncertificated form.
Notification of interests
160. In addition to the obligation to disclose interests in shares pursuant to
Part VI of the Act and the regulations made under it, any person with an
interest in Ordinary Shares and any person treated as Appearing to be
Interested in Ordinary Shares shall notify the Company in writing as soon
as practicable following any event which would cause such person to
disclose interests in shares pursuant to Part VI of the Act and any
regulations made under it as if such obligation applied by reference to
interests in Ordinary Shares.
PROXIES AND CORPORATE REPRESENTATIVES
Appointment of proxy: execution
161. The appointment of a proxy, whether by means of an instrument or contained
in an electronic communication, shall be executed in such manner as the
Board may approve. Subject thereto, the appointment of a proxy shall be
executed by the appointor or his attorney or, if the appointor is a
corporation, executed by a duly authorised officer, attorney or other
authorised person or under its common seal. For the purpose of this Article
and Articles 162 to 166, an electronic communication which contains a proxy
appointment need not comprise writing if the Board so determines and in
such a case, if the Board so determines, the appointment need not be
executed but shall instead be subject to such conditions as the Board may
approve.
Method of proxy appointment
162. The appointment of a proxy shall be in any usual form or in any other form
which the Board may approve. Subject thereto, the appointment of a proxy
may be:
(a) by means of an instrument; or
(b) contained in an electronic communication sent to such address (if any)
as may for the time being be notified by or on behalf of the Company
for that purpose, provided that the electronic communication is
received in accordance with Article 163 not less than 48 hours before
the time appointed for holding the meeting or adjourned meeting (or
any postponed time appointed for holding the meeting pursuant to
Article 107) or, where a poll is taken more than 48 hours after it is
demanded, after the poll has been demanded and not less than 24 hours
before the time appointed for the taking of the poll, and
the Board may, if it thinks fit, but subject to the provisions of the
Companies Acts, at the Company's expense send forms of proxy for use at the
meeting and issue invitations contained in electronic communications to
appoint a proxy in relation to the meeting in such form as may be approved
by the Board. The appointment of a proxy shall not preclude a member from
attending and voting in person at the meeting or poll concerned. A member
may appoint more than one proxy to attend on the same occasion.
43
Sending of proxy appointment
163. Without prejudice to Article 107(b) or to the second sentence of Article
119, the appointment of a proxy shall:
(a) in the case of an instrument, be delivered personally or by post to
the office or such other place within the United Kingdom as may be
specified by or on behalf of the Company for that purpose:
(i) in the notice convening the meeting, or
(ii) in any form of proxy sent by or on behalf of the Company in
relation to the meeting,
not less than 48 hours before the time appointed for holding the
meeting or adjourned meeting (or any postponed time appointed for
holding the meeting pursuant to Article 107) at which the person named
in the appointment proposes to vote; or
(b) in the case of an appointment contained in an electronic
communication, where an address has been specified by or on behalf of
the Company for the purpose of receiving electronic communications:
(i) in the notice convening the meeting, or
(ii) in any form of proxy sent by or on behalf of the Company in
relation to the meeting, or
(iii) in any invitation contained in an electronic communication to
appoint a proxy issued by or on behalf of the Company in
relation to the meeting,
be received at that address not less than 48 hours before the time
appointed for holding the meeting or adjourned meeting (or any
postponed time appointed for holding the meeting pursuant to Article
107) at which the person named in the appointment proposes to vote; or
(c) in either case, where a poll is automatic, the appointment of a proxy
shall be delivered or received not less than 48 hours before the
meeting at which the poll is to be held, and, in circumstances where a
poll is demanded and taken more than 48 hours after it is demanded, be
delivered or received as aforesaid after the poll has been demanded
and not less than 24 hours before the time appointed for the taking of
the poll; or
(d) in the case only of an instrument, where a poll is not taken forthwith
but is, in respect of resolutions on which the P&O Princess Special
Voting Share has no vote, taken not more than 48 hours after it was
demanded, be delivered at the meeting at which the poll was demanded
to the chairman or to the secretary or to any director.
164. A proxy deposited by the holder of the P&O Princess Special Voting Share
will be valid if it is received by or delivered to the chairman of the
meeting before the close of the poll to which it relates.
44
Delivery of authority
165. Except in relation to an instrument deposited by the holder of the P&O
Princess Special Voting Share (which is governed by Article 164 above), any
power of attorney or other written authority under which a proxy
appointment is executed or an office or notarially certified copy or a copy
certified in accordance with the Powers of Attorney Act 1971 of such power
or written authority shall be:
(a) delivered personally or by post to the office, or to such other place
within the United Kingdom as may be specified by or on behalf of the
Company in accordance with Article 163(a), not less than 48 hours
before the time appointed for holding the meeting or adjourned meeting
(or any postponed time appointed for holding the meeting pursuant to
Article 107) at which the person named in the appointment proposes to
vote; or
(b) in respect of resolutions on which the P&O Princess Special Voting
Share has no vote, where a poll is taken more than 48 hours after it
is demanded, be delivered as aforesaid after the poll has been
demanded and not less than 24 hours before the time appointed for the
taking of the poll; or
(c) in the case only of a proxy appointment by means of an instrument, in
respect of resolutions on which the P&O Princess Special Voting Share
has no vote, where a poll is not taken forthwith but is taken not more
than 48 hours after it was demanded, be delivered at the meeting at
which the poll was demanded to the chairman or to the secretary or to
any director together with the proxy appointment to which it relates.
166. A proxy appointment which is not delivered or received in accordance with
Articles 163 or 164, or in respect of which Article 165 has not been
complied with, shall be invalid. No proxy appointment shall be valid more
than twelve months after the date stated in it as the date of its
execution. When two or more valid proxy appointments are delivered or
received in respect of the same share for use at the same meeting, the one
which was executed last shall be treated as replacing and revoking the
others as regards that share; if the Company is unable to determine which
was executed last, none of them shall be treated as valid in respect of
that share.
Validity of proxy appointment
167. A proxy appointment shall be deemed to include the right to demand, or join
in demanding, a poll but shall not confer any further right to speak at a
meeting, except with the permission of the chairman. Save in respect of a
proxy delivered in respect of the P&O Princess Special Voting Share, the
proxy appointment shall also be deemed to confer authority to vote on any
amendment of a resolution put to the meeting for which it is given as the
proxy thinks fit. The proxy appointment shall, unless it provides to the
contrary, be valid for any adjournment of the meeting as well as for the
meeting to which it relates.
Corporate representatives
168. Any corporation which is a member of the Company (in this Article the
"grantor") may, by resolution of its directors or other governing body,
authorise such person as it thinks fit to act as its representative at any
meeting of the Company or at any separate meeting of the holders of any
class of shares. A person so authorised shall be entitled
45
to exercise the same power on behalf of the grantor as the grantor could
exercise if it were an individual member of the Company, save that a
director, the secretary or other person authorised for the purpose by the
secretary may require such person to produce a certified copy of the
resolution of authorisation before permitting him to exercise his powers.
The grantor shall for the purposes of these Articles be deemed to be
present in person at any such meeting if a person so authorised is present
at it.
Revocation of authority
169. A vote given or poll demanded by a proxy or by the duly authorised
representative of a corporation shall be valid notwithstanding the previous
determination of the authority of the person voting or demanding the poll
unless notice of the determination was either delivered or received as
mentioned in the following sentence at least three hours before the start
of the meeting or adjourned meeting at which the vote is given or the poll
demanded or (in the case of a poll taken otherwise than on the same day as
the meeting or adjourned meeting) the time appointed for taking the poll.
Such notice of determination shall be either by means of an instrument
delivered to the office or to such other place within the United Kingdom as
may be specified by or on behalf of the Company in accordance with Article
163(a) or contained in an electronic communication received at the address
(if any) specified by or on behalf of the Company in accordance with
Article 163(b), regardless of whether any relevant proxy appointment was
effected by means of an instrument or contained in an electronic
communication. For the purpose of this Article, an electronic communication
which contains such notice of determination need not comprise writing if
the Board has determined that the electronic communication which contains
the relevant proxy appointment need not comprise writing.
NUMBER OF DIRECTORS
Limits on number of directors
170. Unless otherwise determined by ordinary resolution, the number of directors
(other than alternate directors) shall be not less than three nor more than
a maximum of twenty five in number (or such lesser maximum as the directors
may from time to time resolve).
APPOINTMENT AND RETIREMENT OF DIRECTORS
Directors
Number of directors to retire
171. At every subsequent annual general meeting following the adoption of these
Articles one-third of the directors who are subject to retirement by
rotation or, if their number is not three or a multiple of three, the
number nearest to one-third shall retire from office; but;
(a) if any director has at the start of the annual general meeting been in
office for more than three years since his last appointment or
re-appointment, he shall retire; and
(b) if there is only one director who is subject to retirement by
rotation, he shall retire.
46
Which directors to retire
172. Subject to the provisions of the Companies Acts and these Articles, the
directors to retire by rotation shall be those who have been longest in
office since their last appointment or re-appointment. As between persons
who became or were last re-appointed directors on the same day those to
retire shall (unless they otherwise agree among themselves) be determined
by lot. The directors to retire on each occasion (both as to number and
identity) shall be determined by the composition of the board at the date
of the notice convening the annual general meeting. No director shall be
required to retire or be relieved from retiring or be retired by reason of
any change in the number or identity of the directors after the date of the
notice but before the close of the meeting. If the Company does not fill
the vacancy at the meeting at which a director retires by rotation or
otherwise, the retiring director shall, if willing to act, be deemed to
have been re-appointed unless at the meeting it is resolved not to fill the
vacancy or unless a resolution for the re-appointment of the director is
put to the meeting and lost.
Eligibility for election and effectiveness of appointment
173. No person shall be appointed a director at any general meeting unless:
(a) he is recommended by the Board; or
(b) not less than seven nor more than 42 days before the earlier of the
date appointed for the meeting and the date appointed for the Parallel
General Meeting, notice executed by a member qualified to vote at the
meeting (not being the person to be proposed) has been received by the
Company of the intention to propose that person for appointment
stating the particulars which would, if he were so appointed, be
required to be included in the Company's register of directors,
together with notice executed by that person of his willingness to be
appointed.
174. No person shall be a director of the Company unless he is also a director
of Carnival. The appointment of a person as a director of the Company shall
only take effect at the same time as that person's appointment as a
director of Carnival takes effect. Any director who resigns from his office
will be obliged to resign as a director of Carnival at the same time as he
resigns from the Board and his resignation from the Board shall not take
effect until he does so.
Separate resolutions on appointment
175. Except as otherwise authorised by the Companies Acts, the appointment of
any person proposed as a director shall be effected by a separate
resolution.
Additional powers of the Company
176. Subject to Articles 124 to 129 and to Article 174, the Company may by
ordinary resolution appoint a person who is willing to act to be a director
either to fill a vacancy or as an additional director. The appointment of a
person to fill a vacancy or as an additional director shall take effect
from the end of the meeting.
47
Appointment by Board
177. The Board may appoint a person who is willing to act to be a director,
either to fill a vacancy or as an additional director and in either case
whether or not for a fixed term, provided that the appointment does not
cause the number of directors to exceed the number, if any, fixed by or in
accordance with these Articles as the maximum number of directors. If a
person is appointed as a director of Carnival by the Board of Carnival in
accordance with the Carnival Constitution, the Board shall also appoint
that person as a director of the Company.
178. Irrespective of the terms of his appointment, a director so appointed shall
hold office only until the next following annual general meeting and shall
not be taken into account in determining the directors who are to retire by
rotation at the meeting. If not re-appointed at such annual general
meeting, he shall vacate office at its conclusion.
Position of retiring directors
179. A director who retires at an annual general meeting may, if willing to act,
be re-elected. If he is not re-elected, he shall retain office until the
meeting appoints someone in his place, or if it does not do so, until the
later of the end of the meeting at which the director retires and the end
of the Parallel General Meeting.
Age limit
180. No person shall be disqualified from being appointed or re-appointed a
director, and no director shall be required to vacate that office, by
reason only of the fact that he has attained the age of 70 years or any
other age nor shall it be necessary by reason of his age to give special
notice under the Companies Acts of any resolution for his appointment or
re-appointment.
No share qualification
181. A director shall not be required to hold any shares in the capital of the
Company by way of qualification.
ALTERNATE DIRECTORS
Power to appoint alternates
182. Any director (other than an alternate director) may appoint any other
director, willing to act, to be an alternate director and may remove from
office an alternate director so appointed by him.
Alternates entitled to receive notice
183. An alternate director shall be entitled to receive notice of all meetings
of the Board and of all meetings of committees of the Board of which his
appointor is a member, to attend and vote at any such meeting at which his
appointor is not personally present, and generally to perform all the
functions of his appointor (except as regards power to appoint an
alternate) as a director in his absence.
48
Alternates representing more than one director
184. A director may act as alternate director to represent more than one
director, and an alternate director shall be entitled at meetings of the
Board or any committee of the Board to one vote for every director whom he
represents (and who is not present) in addition to his own vote as a
director, and shall count for the purpose of determining whether a quorum
is present both in his capacity as a director and in his capacity as an
alternate director.
Termination of appointment
185. An alternate director shall cease to be an alternate director:
(a) if his appointer ceases to be a director; but, if a director retires
by rotation or otherwise but is re-appointed or deemed to have been
re-appointed at the meeting at which he retires, any appointment of an
alternate director made by him which was in force immediately prior to
his retirement shall continue after his re-appointment; or
(b) on the happening of any event which would cause him to vacate his
office as director; or
(c) if he resigns his office as a director by notice to the Company; or
(d) if he notifies the Board and his appointer that he no longer wishes to
serve as an alternate director.
Method of appointment and revocation
186. Any appointment or removal of an alternate director shall be by notice to
the Company signed by the director making or revoking the appointment and
shall take effect in accordance with the terms of the notice on receipt of
such notice by the Company which shall, in the case of a notice contained
in an instrument, be at the office or, in the case of a notice contained in
an electronic communication, be at such address (if any) as may for the
time being be notified by or on behalf of the Company for that purpose.
Alternate not an agent of appointor
187. Except as otherwise expressly provided in these Articles, an alternate
director shall be deemed for all purposes to be a director. Accordingly,
except where the context otherwise requires, a reference to a director
shall be deemed to include a reference to an alternate director. An
alternate director shall alone be responsible for his own acts and defaults
and he shall not be deemed to be the agent of the director appointing him.
POWERS OF THE BOARD
Business to be managed by Board
188. Subject to the provisions of the Companies Acts, the Memorandum and these
Articles and to any directions given by special resolution, the business of
the Company shall be managed by the Board which may pay all expenses
incurred in forming and registering the Company and may exercise all the
powers of the Company, including without limitation the power to dispose of
all or any part of the undertaking of the
49
Company. No alteration of the Memorandum or Articles and no such direction
shall invalidate any prior act of the Board which would have been valid if
that alteration had not been made or that direction had not been given. The
powers given by this Article shall not be limited by any special power
given to the Board by these Articles. A meeting of the Board at which a
quorum is present may exercise all powers exercisable by the Board.
Discretionary Matters
189. The Board may, by agreement with the Board of Carnival:
(a) decide to seek the approval of the shareholders (or any class of
shareholders) of either or both of the Company and Carnival for any
matter that would not otherwise require such approval;
(b) require any Joint Electorate Action to be approved instead as a Class
Rights Action; or
(c) specify a higher majority vote than the required majority that would
otherwise be required for any shareholder vote provided for in
Articles 125(a) and 128.
Exercise by Company of voting rights
190. The Board may exercise the voting power conferred by the shares in any body
corporate held or owned by the Company in such manner in all respects as it
thinks fit (including without limitation the exercise of that power in
favour of any resolution appointing its members or any of them as directors
of such body corporate, or voting or providing for the payment of
remuneration to the directors of such body corporate).
DELEGATION OF POWERS OF THE BOARD
Committees of the Board
191. A majority of the Board may delegate any of its powers to any committee
consisting of two or more directors. Any such delegation may be made
subject to such conditions as the majority of the Board may specify and may
be revoked or altered. Subject to any conditions imposed by a majority of
the Board, the proceedings of a committee with two or more directors shall
be governed by these Articles regulating the proceedings of directors so
far as they are capable of applying. For the avoidance of doubt, Article
209 shall not apply with regard to determining whether a committee of the
Board is quorate. A committee of the Board will be quorate if at least a
majority of the directors appointed to that committee is present.
Agents
192. A majority of the Board or of a committee of the Board may, by power of
attorney or otherwise, appoint any person to be the agent of the Company
for such purposes, with such powers, authorities and discretions (not
exceeding those vested in the Board) and on such conditions as the Board or
the relevant committee determines, including without limitation authority
for the agent to delegate all or any of his powers, authorities and
discretions, and may revoke or vary such delegation.
50
Offices including the title "director"
193. A majority of the Board may appoint any person to any office or employment
having a designation or title including the word "director" or attach to
any existing office or employment with the Company such a designation or
title and may terminate any such appointment or the use of any such
designation or title. The inclusion of the word "director" in the
designation or title of any such office or employment shall not imply that
the holder is a director of the Company, and the holder shall not thereby
be empowered in any respect to act as, or be deemed to be, a director of
the Company for any of the purposes of these Articles.
Director's power to give effect to the DLC agreements
194. The directors are authorised and directed to carry into effect the
provisions of the Equalization Agreement, the Voting Agreement, the P&O
Princess Guarantee and any further agreements or arrangements that the
Company is party to which are mentioned in or contemplated by such
agreements. Subject to the Acts, nothing done in good faith by any director
pursuant to such authority and obligations shall constitute a breach of the
fiduciary duties of such director to the Company or its shareholders. In
particular:
(a) the directors shall, in addition to their duties to the Company, be
entitled to have regard to the interests of the Combined Shareholders
and to the interests of Carnival, as if the Company and Carnival were
a single legal entity;
(b) the directors are authorised to provide to Carnival and any officer,
employee or agent of Carnival any information relating to the Company;
and
(c) the directors are authorised to enter into, operate and carry into
effect the Equalization Agreement, the Voting Agreement and the P&O
Princess Guarantee with full power to:
(i) enter into, operate and carry into effect any further or other
agreements or arrangements with or in connection with Carnival or
the holder of the P&O Princess Special Voting Share; and
(ii) do all such things as, in the opinion of the directors, are
necessary or desirable for the application, implementation,
protection, furtherance or maintenance of the dual listed company
relationship with Carnival constituted by or arising out of any
agreement or arrangement.
DISQUALIFICATION AND REMOVAL OF DIRECTORS
Disqualification as a director
195. The office of a director shall be vacated immediately if:
(a) he ceases to be a director by virtue of any provisions of the
Companies Acts or these Articles or he becomes prohibited by
applicable law from being a director; or
(b) he resigns his office by notice to the Company or, having been
appointed for a fixed term, the term expires or his office as a
director is vacated pursuant to Article 177; or
51
(c) he ceases to be a director of Carnival.
REMUNERATION OF NON-EXECUTIVE DIRECTORS
Ordinary remuneration
196. The ordinary remuneration of the directors who do not hold executive office
for their services (excluding amounts payable under any other provision of
these Articles) shall not exceed in aggregate (pound)1,000,000 per annum or
such higher amount as the Company may from time to time by ordinary
resolution determine and shall be satisfied in such manner as the Board or
any validly formed committee thereof shall from time to time determine,
which includes without limitation satisfaction in Company shares. Subject
thereto, each such director shall be paid a fee (which shall be deemed to
accrue from day to day) at such rate as may from time to time be determined
by the Board.
Additional remuneration for special services
197. Any director who does not hold executive office and who serves on any
committee of the Board, by the request of the Board goes or resides abroad
(from his normal country of residence) for any purpose of the Company or
otherwise performs special services which in the opinion of the Board are
outside the scope of the ordinary duties of a director, may (without
prejudice to the provisions of Article 196) be paid such extra remuneration
by way of salary, commission or otherwise as the Board may determine.
DIRECTORS' EXPENSES
Directors may be paid expenses
198. The directors may be paid all travelling, hotel, and other expenses
properly incurred by them in connection with their attendance at meetings
of the Board or the Board of Carnival, meetings of any committees of the
Board or of the Board of Carnival, or general meetings or separate meetings
of the holders of any class of shares or of debentures of the Company or
Carnival, or otherwise in connection with the discharge of their duties
EXECUTIVE DIRECTORS
Appointment to executive office
199. Subject to the provisions of the Companies Acts, the Board may appoint one
or more of its body to be the holder of any executive office (except that
of auditor) in the Company and may enter into an agreement or arrangement
with any director for his employment by the Company or for the provision by
him of any services outside the scope of the ordinary duties of a director.
Any such appointment, agreement or arrangement may be made on such terms,
including without limitation terms as to remuneration, as the Board
determines. The Board may revoke or vary any such appointment but without
prejudice to any rights or claims which the person whose appointment is
revoked or varied may have against the Company because of the revocation or
variation.
52
Termination of appointment to executive office
200. Any appointment of a director to an executive office shall terminate if he
ceases to be a director but without prejudice to any rights or claims which
he may have against the Company by reason of such cessation. A director
appointed to an executive office shall not cease to be a director merely
because his appointment to such executive office terminates.
Emoluments to be determined by the Board
201. The emoluments of any director holding executive office for his services as
such shall be determined by the Board, and may be of any description,
including without limitation admission to, or continuance of, membership of
any scheme (including any share acquisition scheme) or fund instituted or
established or financed or contributed to by the Company for the provision
of pensions, life assurance or other benefits for employees or their
dependants, or the payment of a pension or other benefits to him or his
dependants on or after retirement or death, apart from membership of any
such scheme or fund.
DIRECTORS' INTERESTS
Directors may contract with the Company
202. Subject to the provisions of the Companies Acts, and provided that he has
disclosed to the Board the nature and extent of any material interest of
his, a director notwithstanding his office:
(a) may be a party to, or otherwise interested in, any transaction or
arrangement with the Company or in which the Company is otherwise
interested;
(b) may act by himself or his firm in a professional capacity for the
Company (otherwise than as auditor) and he or his firm shall be
entitled to remuneration for professional services as if he were not a
director;
(c) may be a director or other officer of, or employed by, or a party to
any transaction or arrangement with, or otherwise interested in, any
body corporate promoted by the Company or in which the Company is
otherwise interested; and
(d) shall not, by reason of his office, be accountable to the Company for
any benefit which he derives from any such office or employment or
from any such transaction or arrangement or from any interest in any
such body corporate and no such transaction or arrangement shall be
liable to be avoided on the ground of any such interest or benefit.
Notification of interests
203. For the purposes of this Article:
(a) a general notice given to the Board that a director is to be regarded
as having an interest of the nature and extent specified in the notice
in any transaction or arrangement in which a specified person or class
of persons is interested shall be deemed to be a disclosure that the
director has an interest in any such transaction of the nature and
extent so specified; and
53
(b) an interest of which a director has no knowledge and of which it is
unreasonable to expect him to have knowledge shall not be treated as
an interest of his.
GRATUITIES, PENSIONS AND INSURANCE
Gratuities and pensions
204. The Board may (by establishment of, or maintenance of, schemes or
otherwise) provide benefits, whether by the payment of gratuities or
pensions or by insurance or otherwise, for any past or present director or
employee of the Company or any of its subsidiary undertakings or any body
corporate associated with, or any business acquired by, any of them, and
for any member of his family (including a spouse and a former spouse) or
any person who is or was dependent on him, and may (as well before as after
he ceases to hold such office or employment) contribute to any fund and pay
premiums for the purchase or provision of any such benefit.
Insurance
205. Without prejudice to the provisions of Article 288, the Board may exercise
all the powers of the Company to purchase and maintain insurance for or for
the benefit of any person who is or was:
(a) a director, officer, employee or auditor of the Company or Carnival,
or any body which is or was the holding company or subsidiary
undertaking of the Company or Carnival, or in which the Company or
Carnival or a holding company or subsidiary undertaking of the Company
or Carnival has or had any interest (whether direct or indirect) or
with which the Company or Carnival or a holding company or subsidiary
undertaking of the Company or Carnival is or was in any way allied or
associated; or
(b) a trustee of any pension fund in which employees of the Company,
Carnival or, any other body referred to in Article 205(a) is or has
been interested,
including without limitation insurance against any liability incurred by
such person in respect of any act or omission in the actual or purported
execution or discharge of his duties or in the exercise or purported
exercise of his powers or otherwise in relation to his duties, powers or
offices in relation to the relevant body or fund.
Directors not liable to account
206. No director or former director shall be accountable to the Company or the
members for any benefit provided pursuant to Article 204. The receipt of
any such benefit shall not disqualify any person from being or becoming a
director of the Company.
Section 719 of the Act
207. Pursuant to section 719 of the Act, the Board is hereby authorised to make
such provision as may seem appropriate for the benefit of any persons
employed or formerly employed by the Company or any of its subsidiary
undertakings in connection with the cessation or the transfer of the whole
or part of the undertaking of the Company or any subsidiary undertaking.
Any such provision shall be made by a resolution of the Board in accordance
with section 719.
54
PROCEEDINGS OF THE BOARD
Convening meetings
208. Subject to the provisions of these Articles, the Board may regulate its
proceedings as it thinks fit. The Chairman or any two directors may, and
the secretary at the request of the Chairman or any two directors shall,
call a meeting of the Board. Notice of a Board meeting shall be deemed to
be properly sent to a director if it is sent to him personally or by word
of mouth or sent by instrument to him, at his last known address (whether
within or outside the United Kingdom) or such other address (if any) as may
for the time being be notified by him or on his behalf to the Company for
that purpose, or sent using electronic communications to such address (if
any) as may for the time being be notified by him or on his behalf to the
Company for that purpose. Questions arising at a meeting shall be decided
by a majority of directors present at any meeting (provided that the
meeting is quorate). Any director may waive notice of a meeting and any
such waiver may be retrospective. Any electronic communication pursuant to
this Article need not comprise writing if the Board so determines.
Quorum
209. The quorum for the transaction of the business shall be a majority of the
directors of the Company. A person who holds office as an alternate
director shall, if his appointor is not present, be counted in the quorum
in his capacity as an alternate director (on behalf of his appointor) in
addition to in his capacity as a director of the Company. Any director who
ceases to be a director at a Board meeting may continue to be present and
to act as a director and be counted in the quorum until the termination of
the Board meeting if no director objects.
Powers of directors if number falls below minimum
210. The continuing directors or a sole continuing director may act
notwithstanding any vacancies in their number.
Chairman and deputy chairman
211. The Board may appoint one of their number to be the chairman, and one of
their number to be the deputy chairman, of the Board and may at any time
remove either of them from such office. Unless he is unwilling to do so,
the director appointed as chairman, or in his stead the director appointed
as deputy chairman, shall preside at every meeting of the Board at which he
is present. If there is no director holding either of those offices, or if
neither the chairman nor the deputy chairman is willing to preside or
neither of them is present within five minutes after the time appointed for
the meeting, the directors present may appoint one of their number to be
chairman of the meeting.
Validity of acts of the Board
212. All acts done by a meeting of the Board, or of a committee of the Board, or
by a person acting as a director or alternate director, shall,
notwithstanding that it be afterwards discovered that there was a defect in
the appointment of any director or any member of the committee or alternate
director or that any of them were disqualified from holding office, or had
vacated office, or were not entitled to vote, be as valid as if every such
person had been duly appointed and was qualified and had
55
continued to be a director or, as the case may be, an alternate director
and had been entitled to vote.
Resolutions in writing
213. A resolution in writing signed by all of the directors entitled to receive
notice and vote at a meeting of the Board or of a committee of the Board
shall be as valid and effectual as if it had been passed at a meeting of
the Board or (as the case may be) a committee of the Board duly convened
and held. For this purpose:
(a) a resolution may be by means of an instrument or contained in an
electronic communication sent to such address (if any) as may for the
time being be notified by the Company for that purpose;
(b) a resolution may consist of several instruments or several electronic
communications, each executed by one or more directors, or a
combination of both;
(c) a resolution signed by an alternate director need not also be signed
by his appointor; and
(d) a resolution signed by a director who has appointed an alternate
director need not also be signed by the alternate director in that
capacity.
Meetings by telephone, etc.
214. Without prejudice to the first sentence of Article 209, a person entitled
to be present at a meeting of the Board or of a committee of the Board
shall be deemed to be present for all purposes if he is able (directly or
by telephonic communication) to speak to and be heard by all those present
or deemed to be present simultaneously. A director so deemed to be present
shall be entitled to vote and be counted in a quorum accordingly. Such a
meeting shall be deemed to take place where it is convened to be held or
(if no director is present in that place) where the largest group of those
participating is assembled, or, if there is no such group, where the
chairman of the meeting is. The word "meeting" in these Articles shall be
construed accordingly.
Directors' power to vote on contracts in which they are interested
215. Except as otherwise provided by these Articles, a director shall not vote
at a meeting of the Board or a committee of the Board on any resolution of
the Board concerning a matter in which he has an interest (other than by
virtue of his interests in shares or debentures or other securities of, or
otherwise in or through, the Company or Carnival) which (together with any
interest of any person connected with him) is to his knowledge material
unless his interest arises only because the resolution concerns one or more
of the following matters:
(a) the giving of a guarantee, security or indemnity in respect of money
lent or obligations incurred by him or any other person at the request
of or for the benefit of, the Company or Carnival or any of their
respective subsidiary undertakings;
(b) the giving of a guarantee, security or indemnity in respect of a debt
or obligation of the Company or Carnival or any of their respective
subsidiary
56
undertakings for which the director has assumed responsibility (in
whole or part and whether alone or jointly with others) under a
guarantee or indemnity or by the giving of security;
(c) a contract, arrangement, transaction or proposal concerning an offer
of shares, debentures or other securities of the Company or Carnival
or any of their respective subsidiary undertakings for subscription or
purchase, in which offer he is or may be entitled to participate as a
holder of securities or in the underwriting or sub-underwriting of
which he is to participate;
(d) a contract, arrangement, transaction or proposal concerning any other
body corporate in which he or any person connected with him is
interested, directly or indirectly, and whether as an officer,
shareholder, creditor or otherwise, if he and any persons connected
with him do not to his knowledge hold an interest (as that term is
used in sections 198 to 211 of the Act) representing one per cent. or
more of either any class of the equity share capital of such body
corporate (or any other body corporate through which his interest is
derived) or of the voting rights available to members of the relevant
body corporate (any such interest being deemed for the purpose of this
Article to be material interest in all circumstances);
(e) a contract, arrangement, transaction or proposal for the benefit of
employees of the Company or Carnival or any of their respective
subsidiary undertakings which does not award him any privilege or
benefit not generally accorded to the employees to whom the
arrangement relates; and
(f) a contract, arrangement, transaction or proposal concerning any
insurance which the Company or Carnival is empowered to purchase or
maintain for, or for the benefit of, any directors of the Company or
of Carnival, or for persons who include directors of the Company or of
Carnival.
Interests of connected person and alternate director
216. For the purposes of this Article, an interest of a person who is, for any
purpose of the Companies Acts (excluding any statutory modification of the
Companies Acts not in force when this Article is adopted), connected with a
director shall be treated as an interest of the director and, in relation
to an alternate director, an interest of his appointor shall be treated as
an interest of the alternate director without prejudice to any interest
which the alternate director has otherwise.
Division of proposals
217. Where proposals are under consideration concerning the appointment
(including without limitation fixing or varying the terms of appointment)
of two or more directors to offices or employments with the Company or any
body corporate in which the Company is interested, the proposals may be
divided and considered in relation to each director separately. In such
cases each of the directors concerned shall be entitled to vote in respect
of each resolution except that concerning his own appointment.
57
SECRETARY
Appointment and removal of secretary
218. Subject to the provisions of the Companies Acts, the secretary shall be
appointed by the Board for such term, at such remuneration and on such
conditions as it may think fit. Any secretary so appointed may be removed
by the Board, but without prejudice to any claim for damages for breach of
any contract of service between him and the Company.
MINUTES
Minutes required to be kept
219. The Board shall cause minutes to be made in books kept for the purpose of:
(a) all appointments of officers made by the Board; and
(b) all proceedings at meetings of the Company, the holders of any class
of shares in the capital of the Company, the Board and committees of
the Board, including the names of the directors present at each such
meeting.
Conclusiveness of minutes
220. Any such minutes, if purporting to be signed by the chairman of the meeting
to which they relate or of the meeting at which they are read, shall be
sufficient evidence of the proceedings at the meeting without any further
proof of the facts stated in them.
THE SEAL
Authority required for execution of deed
221. The seal shall only be used by the authority of a resolution of the Board
or a duly appointed committee of the Board. The Board may determine who
shall sign any instrument executed under the seal. If they do not, it shall
be signed by at least one director and the secretary or by at least two
directors. Any instrument may be executed under the seal by impressing the
seal by mechanical means or by printing the seal or a facsimile of it on
the instrument or by applying the seal or a facsimile of it by any other
means to the instrument. An instrument signed, with the authority of a
resolution of the Board, by a director and the secretary or by two
directors and expressed (in whatever form of words) to be executed by the
Company has the same effect as if executed under the seal. For the purpose
of the preceding sentence only, "secretary" shall have the same meaning as
in the Act and not the meaning given to it by Article 2.
Certificates for shares and debentures
222. The Board may by resolution determine either generally or in any particular
case that any certificate for shares or debentures or representing any
other form of security may have any signature affixed to it by some
mechanical means, or printed on it or, in the case of a certificate
executed under the seal, need not bear any signature.
58
Official seal for use abroad
223. The Company may exercise the powers conferred by section 39 of the Act with
regard to having an official seal for use abroad.
REGISTERS
Overseas and local registers
224. Subject to the provisions of the Companies Acts and the Regulations, the
Company may keep an overseas or local or other register in any place, and
the Board may make, amend and revoke any regulations it thinks fit about
the keeping of that register.
Authentication and certification of copies and extracts
225. Any director or the secretary or any other person appointed by the Board
for the purpose shall have power to authenticate and certify as true copies
of and extracts from:
(a) any document comprising or affecting the constitution of the Company
whether in physical form or electronic form;
(b) any resolution passed by the Company, the holders of any class of
shares in the capital of the Company, the Board or any committee of
the Board whether in physical form or electronic form; and
(c) any book, record and document relating to the business of the Company
whether in physical form or electronic form (including without
limitation the accounts), and
if certified in this way, a document purporting to be a copy of a resolution, or
the minutes or an extract from the minutes of a meeting of the Company, the
holders of any class of shares in the capital of the Company, the Board or a
committee of the Board, whether in physical form or electronic form, shall be
conclusive evidence in favour of all persons dealing with the Company in
reliance on it or them that the resolution was duly passed or that the minutes
are, or the extract from the minutes is, a true and accurate record of
proceedings at a duly constituted meeting.
DIVIDENDS
Declaration of dividends
226. Subject to the provisions of the Companies Acts and the Equalization
Agreement, the Company may by ordinary resolution declare dividends in
accordance with the respective rights of the members, but no dividend shall
exceed the amount recommended by the Board.
227. The Board shall announce any dividends on ordinary shares in US dollars (or
such other currency as it shall determine from time to time) together with
a sterling equivalent for any such dividend in accordance with Article 232
below.
228. The Board may at its discretion make provisions to enable a member to
receive dividends duly payable in a currency or currencies other than
dollars or sterling.
59
229. Holders of ordinary shares shall be entitled to be paid dividends in
sterling for so long as sterling remains the national currency of the
United Kingdom or in any replacement currency if sterling ceases to be the
only national currency of the United Kingdom.
Interim dividends
230. Subject to the provisions of the Companies Acts, the Equalization Agreement
and Articles 234 to 236 (inclusive), the Board may pay interim dividends if
it appears to the Board that they are justified by the profits of the
Company available for distribution. If the share capital is divided into
different classes, the Board may pay interim dividends on shares which
confer deferred or non-preferred rights with regard to dividend as well as
on shares which confer preferential rights with regard to dividend, but no
interim dividend shall be paid on shares carrying deferred or non-preferred
rights if, at the time of payment, any preferential dividend is in arrear.
The Board may also pay at intervals settled by it any dividend payable at a
fixed rate if it appears to the Board that the profits available for
distribution justify the payment. If the Board acts in good faith it shall
not incur any liability to the holders of shares conferring preferred
rights for any loss they may suffer by the lawful payment of an interim
dividend on any shares having deferred or non-preferred rights.
Apportionment of dividends
231. Except as otherwise provided by the rights attached to shares, all
dividends shall be declared and paid according to the amounts paid up on
the shares on which the dividend is paid; but no amount paid on a share in
advance of the date on which a call is payable shall be treated for the
purposes of this Article as paid on the share. All dividends shall be
apportioned and paid proportionately to the amounts paid up on the shares
during any portion or portions of the period in respect of which the
dividend is paid; but, if any share is allotted or issued on terms
providing that it shall rank for dividend as from a particular date, that
share shall rank for dividend accordingly.
Exchange rate dividend calculation
232. For the purposes of the calculation of the amount receivable in respect of
any dividend payable in a currency or currencies other than US dollars, the
rate of exchange to be used to determine the relevant currency equivalent
of any sum payable as a dividend shall be such market rate (whether spot or
forward) selected by the Board as it shall consider appropriate by
reference to such market rate or rates or the mean of such market rates
prevailing at such time or times or on such date or dates as the Board may
in its discretion select.
Ranking of shares for dividends
233. The rights attaching to the shares of the Company, as regards the
participation in the profits available for distribution and resolved to be
distributed, are as follows:
(a) the holders of preference shares shall be entitled, in priority to any
payment of dividends to the holders of any other class of shares, to a
preferred right to participate as regards dividends up to but not
beyond a specified amount; and
60
(b) any surplus remaining after payment of the dividends under paragraph
(a) shall be payable to the holders of the P&O Princess Ordinary
Shares in equal amounts per share.
Matching cash dividends or distributions of an income nature
234. Subject to the other provisions of these Articles, the Company shall not
pay or make any Distribution in cash unless Carnival also pays or makes a
Distribution in cash at or about the same time and the ratio of the
Equalization Distribution Amount so paid or made by Carnival to the
Equalization Distribution Amount so paid or made by the Company (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").
235. The Company 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, Carnival has sufficient distributable
reserves to make an Equivalent Distribution with respect to such
Distribution; or (ii) the Company agrees to pay, and does pay, to Carnival
(before Carnival pays or makes such Distribution) the minimum amount
required by Carnival so that it will have sufficient distributable reserves
to pay or make such an Equivalent Distribution. Notwithstanding compliance
with the preceding sentence, if Carnival shall have declared or otherwise
become obligated to pay or make such Equivalent Distribution when due, then
the Company shall pay to Carnival the minimum amount required by Carnival
so that Carnival will have sufficient distributable reserves to pay or make
such Equivalent Distribution; provided however that if the Company 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 Company 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 it had declared
or became obligated to make) that it can make with its distributable
reserves and (ii) Carnival 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.
236. For purposes of Article 235, the amount the Company is required to pay
Carnival shall be determined after taking into account all Taxes payable
by, and all Tax credits of, the Company and Carnival with respect to the
payment or receipt of such payment and any such payment may be made on the
Equalization Share issued by the Company if both the Board and the Board of
Carnival deem it appropriate.
Timing of dividends and distributions
237. The Board, insofar as is practical, will:
(a) in relation to any proposed cash Distribution, agree with the Board of
Carnival the amount of the Equivalent Distribution to be made by each
company;
(b) determine to pay or recommend to pay Equivalent Distributions at a
meeting of the Board convened as close in time as is practicable to
the respective meeting of the Board of Carnival;
61
(c) announce and pay any Equivalent Distributions simultaneously or as
close in time as is practicable to the announcement or payment of any
Equivalent Distribution made by the Board of Carnival;
(d) ensure that the record dates for receipt of the Equivalent
Distribution, in respect of the Company and Carnival, are on the same
date; and
(e) generally co-ordinate the timing of all other aspects of the payment
or making of Equivalent Distributions with the Board of Carnival.
Dividends in specie
238. Subject to the provisions of Articles 124 to 129 and the provisions of the
Equalization Agreement, a general meeting declaring a dividend may, on the
recommendation of the Board, by ordinary resolution direct that it shall be
satisfied wholly or partly by the distribution of assets, including without
limitation paid up shares or debentures of another body corporate. The
Board may make any arrangements it thinks fit to settle any difficulty
arising in connection with the distribution, including without limitation
(a) the fixing of the value for distribution of any assets, (b) the payment
of cash to any member on the basis of that value in order to adjust the
rights of members, and (c) the vesting of any asset in a trustee.
Scrip dividends: authorising resolution
239. Subject to the Companies Acts and the provisions of Articles 124 to 129,
the Board may, if authorised by an ordinary resolution of the Company (the
"Resolution"), offer any holder of ordinary shares the right to elect to
receive Ordinary Shares, credited as fully paid, instead of cash in respect
of the whole (or some part, to be determined by the Board) of all or any
dividend specified by the Resolution. The offer shall be on the terms and
conditions and be made in the manner specified in Article 240 or, subject
to those provisions, specified in the Resolution.
Scrip dividends: procedures
240. The following provisions shall apply to the Resolution and any offer made
pursuant to it and Article 239.
(a) The Resolution may specify a particular dividend, or may specify all
or any dividends declared within a specified period.
(b) Each holder of Ordinary Shares shall be entitled to that number of new
shares as are together as nearly as possible equal in value to (but
not greater than) the cash amount (disregarding any tax credit) of the
dividend that such holder elects to forgo (each a "new share"). For
this purpose, the value of each new share shall be:
(i) equal to the average quotation for the Company's Ordinary Shares,
that is, the average of the middle market quotations for those
shares on the London Stock Exchange, as derived from the Daily
Official List, on the day on which such shares are first quoted
ex the relevant dividend and the four subsequent dealing days; or
(ii) calculated in any other manner specified by the Resolution,
62
but shall never be less than the par value of the new share. A
certificate or report by the auditors as to the value of a new share
in respect of any dividend shall be conclusive evidence of that value.
(c) On or as soon as practicable after announcing that any dividend is to
be declared or recommended, the Board, if it intends to offer an
election in respect of that dividend, shall also announce that
intention. If, after determining the basis of allotment, the Board
decides to proceed with the offer, it shall notify the holders of
Ordinary Shares of the terms and conditions of the right of election
offered to them, specifying the procedure to be followed and place at
which, and the latest time by which, elections or notices amending or
terminating existing elections must be lodged in order to be
effective.
(d) The Board shall not proceed with any election unless the Company has
sufficient unissued Ordinary Shares authorised for issue and
sufficient reserves or funds that may be appropriated to give effect
to it after the basis of allotment is determined.
(e) The Board may exclude from any offer any holders of Ordinary Shares
where the Board believes the making of the offer to them would or
might involve the contravention of the laws of any territory or that
for any other reason the offer should not be made to them.
(f) The dividend (or that part of the dividend in respect of which a right
of election has been offered) shall not be payable in cash on Ordinary
Shares in respect of which an election has been made (the "elected
shares") and instead such number of new shares shall be allotted to
each holder of elected shares as is arrived at on the basis stated in
Article 240(b). For that purpose the Board shall appropriate out of
any amount for the time being standing to the credit of any reserve or
fund (including without limitation the profit and loss account),
whether or not it is available for distribution, a sum equal to the
aggregate nominal amount of the new shares to be allotted and apply it
in paying up in full the appropriate number of new shares for
allotment and distribution to each holder of elected shares as is
arrived at on the basis stated in Article 240(b).
(g) The new shares when allotted shall rank equally in all respects with
the fully paid shares of the same class then in issue except that they
shall not be entitled to participate in the relevant dividend.
(h) No fraction of an Ordinary Share shall be allotted. The Board may make
such provision as it thinks fit for any fractional entitlements
including without limitation payment in cash to holders in respect of
their fractional entitlements, provision for the accrual, retention or
accumulation of all or part of the benefit of fractional entitlements
to or by the Company or to or by or on behalf of any holder or the
application of any accrual, retention or accumulation to the allotment
of fully paid shares to any holder.
(i) The Board may do all acts and things it considers necessary or
expedient to give effect to the allotment and issue of any share
pursuant to this Article or otherwise in connection with any offer
made pursuant to this Article and may
63
authorise any person, acting on behalf of the holders concerned, to
enter into an agreement with the Company providing for such allotment
or issue and incidental matters. Any agreement made under such
authority shall be effective and binding on all concerned.
(j) The Board may, at its discretion, amend, suspend or terminate any
offer pursuant to this Article.
Permitted deductions and retentions
241. The Board may deduct from any dividend or other moneys payable to any
member in respect of a share any moneys presently payable by him to the
Company in respect of that share. Where a person is entitled by
transmission to a share, the Board may retain any dividend payable in
respect of that share until that person (or that person's transferee)
becomes the holder of that share.
Procedure for payment to holders and others entitled
242. Any dividend or other moneys payable in respect of a share may be paid:
(a) in cash; or
(b) by cheque or warrant made payable to or to the order of the holder or
person entitled to payment; or
(c) by any direct debit, bank or other funds transfer system to the holder
or person entitled to payment or, if practicable, to a person
designated by notice to the Company by the holder or person entitled
to payment; or
(d) by any other method approved by the Board and agreed (in such form as
the Company thinks appropriate) by the holder or person entitled to
payment including (without limitation) in respect of an uncertificated
share by means of the relevant system (subject to the facilities and
requirements of the relevant system).
Joint entitlement
243. If two or more persons are registered as joint holders of any share, or are
entitled by transmission jointly to a share, the Company may:
(a) pay any dividend or other moneys payable in respect of the share to
any one of them and any one of them may give effectual receipt for
that payment; and
(b) for the purposes of Article 242, rely in relation to the share on the
written direction, designation or agreement of, or notice to the
Company by, any one of them.
Payment by post
244. A cheque or warrant may be sent by post to:
(a) where a share is held by a sole holder, the registered address of the
holder of the share; or
64
(b) if two or more persons are the holders, to the registered address of
the person who is first named in the register; or
(c) if a person is entitled by transmission to the share, as if it were a
notice to be given under Articles 254 to 260; or
(d) in any case, to such person and to such address as the person entitled
to payment may direct by notice to the Company.
Discharge to Company and risk
245. Payment of a cheque or warrant by the bank on which it was drawn or the
transfer of funds by the bank instructed to make the transfer or, in
respect of an uncertificated share, the making of payment in accordance
with the facilities and requirements of the relevant system (which, if the
relevant system is CREST, shall be the creation of an assured payment
obligation in respect of the dividend or other moneys payable in favour of
the settlement bank of the member or other person concerned) shall be a
good discharge to the Company. Every cheque or warrant sent in accordance
with these Articles shall be at the risk of the holder or person entitled.
The Company shall have no responsibility for any sums lost or delayed in
the course of payment by any other method used by the Company in accordance
with Article 242.
Interest not payable
246. No dividend or other moneys payable in respect of a share shall bear
interest against the Company unless otherwise provided by the rights
attached to the share.
Forfeiture of unclaimed dividends
247. Any dividend which has remained unclaimed for 12 years from the date when
it became due for payment shall, unless the Board resolves otherwise, be
forfeited and cease to remain owing by the Company. The payment of any
unclaimed dividend or other moneys payable in respect of a share may (but
need not) be paid by the Company into an account separate from the
Company's own account. Such payment shall not constitute the Company a
trustee in respect of it. The Company shall be entitled to cease sending
dividend warrants and cheques by post or otherwise to a member if those
instruments have been returned undelivered to, or left uncashed by, that
member on at least two consecutive occasions, or, following one such
occasion, reasonable enquiries have failed to establish the member's new
address. The entitlement conferred on the Company by this Article in
respect of any member shall cease if the member claims a dividend or cashes
a dividend warrant or cheque.
CAPITALISATION OF PROFITS AND RESERVES
Power to capitalise
248. Subject to the provisions of Articles 124 to 129 and the provisions of the
Equalization Agreement, the Board may with the authority of an ordinary
resolution of the Company:
(a) subject to the provisions of this Article, resolve to capitalise any
undistributed profits of the Company not required for paying any
preferential dividend (whether or not they are available for
distribution) or any sum standing to the
65
credit of any reserve or other fund, including without limitation
the Company's share premium account and capital redemption
reserve, if any;
(b) appropriate the sum resolved to be capitalised to the members or
any class of members on the record date specified in the relevant
resolution who would have been entitled to it if it were
distributed by way of dividend and in the same proportions;
(c) apply that sum on their behalf either in or towards paying up the
amounts, if any, for the time being unpaid on any shares held by
them respectively, or in paying up in full unissued shares,
debentures or other obligations of the Company of a nominal amount
equal to that sum but the share premium account, the capital
redemption reserve, and any profits which are not available for
distribution may, for the purposes of this Article, only be
applied in paying up unissued shares to be allotted to members
credited as fully paid;
(d) allot the shares, debentures or other obligations credited as
fully paid to those members, or as they may direct, in those
proportions, or partly in one way and partly in the other;
(e) where shares or debentures become, or would otherwise become,
distributable under this Article in fractions, make such provision
as they think fit for any fractional entitlements including
without limitation authorising their sale and transfer to any
person, resolving that the distribution be made as nearly as
practicable in the correct proportion but not exactly so, ignoring
fractions altogether or resolving that cash payments be made to
any members in order to adjust the rights of all parties;
(f) authorise any person to enter into an agreement with the Company
on behalf of all the members concerned providing for either:
(i) the allotment to the members respectively, credited as fully
paid, of any shares, debentures or other obligations to
which they are entitled on the capitalisation; or
(ii) the payment up by the Company on behalf of the members of
the amounts, or any part of the amounts, remaining unpaid on
their existing shares by the application of their respective
proportions of the sum resolved to be capitalised,
and any agreement made under that authority shall be binding on
all such members; and
(g) generally do all acts and things required to give effect to the
ordinary resolution.
RECORD DATES
Record dates for dividends, etc.
249. Notwithstanding any other provision of these Articles, the Company or
the Board may:
66
(a) fix any date as the record date for any dividend, distribution,
allotment or issue, which may be on or at any time before or after
any date on which the dividend, distribution, allotment or issue
is declared, paid or made;
(b) for the purpose of determining which persons are entitled to
attend and vote at a general meeting of the Company, or a separate
general meeting of the holders of any class of shares in the
capital of the Company, and how many votes such persons may cast,
specify in the notice of meeting a time, not more than 48 hours
before the time fixed for the meeting, by which a person must be
entered on the register in order to have the right to attend or
vote at the meeting; changes to the register after the time
specified by virtue of this Article 249(b) shall be disregarded in
determining the rights of any person to attend or vote at the
meeting; and
(c) for the purpose of sending notices of general meetings of the
Company, or separate general meetings of the holders of any class
of shares in the capital of the Company, under these Articles,
determine that persons entitled to receive such notices are those
persons entered on the register at the close of business on a day
determined by the Company or the Board, which day may not be more
than 21 days before the day that notices of the meeting are sent.
ACCOUNTS
Rights to inspect records
250. No member shall (as such) have any right to inspect any accounting
records or other book or document of the Company except as conferred by
statute or authorized by the Board or by ordinary resolution of the
Company or order of a court of competent jurisdiction.
Sending of annual accounts
251. Subject to the Companies Acts, a copy of the Company's annual accounts,
together with a copy of the directors' report for that financial year
and the auditors' report on those accounts shall, at least 21 clear
days before the date of the meeting at which copies of those documents
are to be laid in accordance with the provisions of the Companies Acts,
be sent to every member and to every holder of the Company's debentures
of whose address the Company is aware, and to every other person who is
entitled to receive notice of meetings from the Company under the
provisions of the Companies Acts or of these Articles or, in the case
of joint holders of any share or debenture, to one of the joint
holders.
Summary financial statements
252. Subject to the Companies Acts, the requirements of Article 251 shall be
deemed satisfied in relation to any person by sending to the person,
instead of such copies, a summary financial statement derived from the
Company's annual accounts and the directors' report, which shall be in
the form and containing the information prescribed by the Companies
Acts and any regulations made under the Companies Acts.
67
NOTICES
When notice required to be in writing: use of electronic communications
253. Any notice to be sent to or by any person pursuant to these Articles
(other than a notice calling a meeting of the Board) shall be in
writing. Any such notice may be sent using electronic communications to
such address (if any) as may for the time being be notified for that
purpose to the person giving the notice by or on behalf of the person
to whom the notice is sent.
Methods of giving notice
254. The Company may send any notice or other document pursuant to these
Articles to a member by whichever of the following methods it may in
its absolute discretion determine:
(a) personally; or
(b) by posting the notice or other document in a prepaid envelope
addressed to the member at his registered address; or
(c) by leaving the notice or other document at that address; or
(d) by sending the notice or other document using electronic
communications to such address (if any) as may for the time being
be notified to the Company by or on behalf of the member for that
purpose.
Website publication
255. Subject to the Companies Acts, the Company may also send any notice or
other document pursuant to these Articles to a member by publishing
that notice or other document on a website where:
(a) the Company and the member have agreed to him having access to the
notice or document on a website (instead of it being sent to him);
(b) the notice or document is one to which that agreement applies;
(c) the member is notified, in a manner for the time being agreed
between him and the Company for the purpose, of:
(i) the publication of the notice or document on a website;
(ii) the address of that website; and
(iii) the place on that website where the notice or document may
be accessed, and how it may be accessed; and
(d) the notice or document is published on that website throughout the
publication period, provided that, if the notice or document is
published on that website for a part, but not all of, the
publication period, the notice or document shall be treated as
being published throughout that period if the failure to publish
that notice or document throughout that period is wholly
attributable to circumstances which it would not be reasonable to
have expected the Company to prevent or avoid.
68
In this Article 255, "publication period" means:
(e) in the case of a notice of an adjourned meeting pursuant to
Article 104, a period of not less than seven clear days before the
date of the adjourned meeting, beginning on the day following that
on which the notification referred to in sub-paragraph (c) above
is sent or (if later) is deemed sent;
(f) in the case of a notice of a poll pursuant to Article 136, a
period of not less than seven clear days before the taking of the
poll, beginning on the day following that on which the
notification referred to in sub-paragraph (c) above is sent or (if
later) is deemed sent; and
(g) in any other case, a period of not less than the relevant notice
period, beginning on the day following that on which the
notification referred to in sub-paragraph (c) above is sent or (if
later) is deemed sent.
Notice to joint holders
256. In the case of joint holders of a share, all notices or other documents
shall be sent to the joint holder whose name stands first in the
register in respect of the joint holding. Any notice or other document
so sent shall be deemed for all purposes sufficient sending to all the
joint holders.
Registered address outside United Kingdom
257. A member whose registered address is not within the United Kingdom and
who gives to the Company an address within the United Kingdom at which
a notice or other document may be sent to him by instrument or an
address to which a notice or other document may be sent using
electronic communications shall (provided that, in the case of
electronic communications, the Company so agrees) be entitled to have
notices or other documents sent to him at that address but otherwise:
(a) no such member shall be entitled to receive any notice or other
document from the Company; and
(b) without prejudice to the generality of the foregoing, any notice
of a general meeting of the Company which is in fact sent or
purports to be sent to such member shall be ignored for the
purpose of determining the validity of the proceedings at such
general meeting.
Deemed receipt of notice
258. A member present, either in person or by proxy, at any meeting of the
Company or of the holders of any class of shares in the capital of the
Company shall be deemed to have been sent notice of the meeting and,
where requisite, of the purposes for which it was called.
Terms and conditions for electronic communications
259. The Board may from time to time issue, endorse or adopt terms and
conditions relating to the use of electronic communications for the
sending of notices, other documents and proxy appointments by the
Company to members and by members to the Company.
69
Notice includes website notification
260. In this Article and in Articles 261, 262 and 263, references to a
notice include without limitation references to any notification
required by the Companies Acts or these Articles in relation to the
publication of any notices or other documents on a website.
Notice to persons entitled by transmission
261. A notice or other document may be sent by the Company to the person or
persons entitled by transmission to a share by sending it in any manner
the Company may choose authorised by these Articles for the sending of
a notice or other document to a member, addressed to them by name, or
by the title of representative of the deceased, or trustee of the
bankrupt or by any similar description at the address, if any, in the
United Kingdom as may be supplied for that purpose by or on behalf of
the person or persons claiming to be so entitled. Until such an address
has been supplied, a notice or other document may be sent in any manner
in which it might have been sent if the death or bankruptcy or other
event giving rise to the transmission had not occurred.
Transferees etc. bound by prior notice
262. Every person who becomes entitled to a share shall be bound by any
notice in respect of that share which, before his name is entered in
the register, has been sent to a person from whom he derives his title,
provided that no person who becomes entitled by transmission to a share
shall be bound by any direction notice issued under Article 154 to a
person from whom he derives his title.
Proof of sending when sent by post
263. Proof that an envelope containing a notice or other document was
properly addressed, prepaid and posted shall be conclusive evidence
that the notice or document was sent. Proof that a notice or other
document contained in an electronic communication was sent in
accordance with guidance issued by the Institute of Chartered
Secretaries and Administrators current at the date of adoption of these
Articles, or, if the Board so resolves, any subsequent guidance so
issued, shall be conclusive evidence that the notice or document was
sent. A notice or other document sent by the Company to a member by
post shall be deemed to be sent:
(a) if sent by first class post or special delivery post from an
address in the United Kingdom to another address in the United
Kingdom, or by a postal service similar to first class post or
special delivery post from an address in another country to
another address in that other country, on the day following that
on which the envelope containing it was posted;
(b) if sent by airmail from an address in the United Kingdom to an
address outside the United Kingdom, or from an address in another
country to an address outside that country (including without
limitation an address in the United Kingdom), on the third day
following that on which the envelope containing it was posted; and
(c) in any other case, on the second day following that on which the
envelope containing it was posted.
70
When notices etc. deemed sent by electronic communication
264. A notice or other document sent by the Company to a member contained in
an electronic communication shall be deemed sent to the member on the
day following that on which the electronic communication was sent to
the member. Such a notice or other document shall be deemed sent to the
member on that day notwithstanding that the Company becomes aware that
the member has failed to receive the relevant notice or other document
for any reason and notwithstanding that the Company subsequently sends
a copy of such notice or other document by post to the member.
Notice during disruption of postal services
265. If at any time the Company is unable effectively to convene a general
meeting by notices sent through the post in the United Kingdom as a
result of the suspension or curtailment of postal services, notice of
general meeting may be sufficiently given by advertisement in the
United Kingdom. Any notice given by advertisement for the purpose of
this Article shall be advertised on the same date in at least one
newspaper having a national circulation. Such notice shall be deemed to
have been sent to all persons who are entitled to have notice of
meetings sent to them on the day when the advertisement appears. In any
such case the Company shall send confirmatory copies of the notice by
post if at least seven days before the meeting the posting of notices
to addresses throughout the United Kingdom again becomes practicable.
The foregoing shall not absolve the Company from any duty to send
notice of a general meeting by use of electronic communications
pursuant to these Articles.
DESTRUCTION OF DOCUMENTS
Power of Company to destroy documents
266. The Company shall be entitled to destroy:
(a) all instruments of transfer of shares which have been registered,
and all other documents on the basis of which any entry is made in
the register, at any time after the expiration of six years from
the date of registration;
(b) all dividend mandates, variations or cancellations of dividend
mandates, and notifications of change of address at any time after
the expiration of two years from the date of recording;
(c) all share certificates which have been cancelled at any time after
the expiration of one year from the date of the cancellation;
(d) all paid dividend warrants and cheques at any time after the
expiration of one year from the date of actual payment;
(e) all proxy appointments which have been used for the purpose of a
poll at any time after the expiration of one year from the date of
use; and
(f) all proxy appointments which have not been used for the purpose of
a poll at any time after one month from the end of the meeting to
which the proxy appointment relates and at which no poll was
demanded.
71
Presumption in relation to destroyed documents
267. It shall conclusively be presumed in favour of the Company that:
(a) every entry in the register purporting to have been made on the
basis of an instrument of transfer or other document destroyed in
accordance with Article 266 was duly and properly made;
(b) every instrument of transfer destroyed in accordance with Article
266 was a valid and effective instrument duly and properly
registered;
(c) every share certificate destroyed in accordance with Article 266
was a valid and effective certificate duly and properly cancelled;
and
(d) every other document destroyed in accordance with Article 266 was
a valid and effective document in accordance with its recorded
particulars in the books or records of the Company,
but:
(e) the provisions of this Article apply only to the destruction of a
document in good faith and without notice of any claim (regardless
of the parties) to which the document might be relevant;
(f) nothing in this Article shall be construed as imposing on the
Company any liability in respect of the destruction of any
document earlier than the time specified in Article 266 or in any
other circumstances which would not attach to the Company in the
absence of this Article; and
(g) any reference in Articles 266 and 267 to the destruction of any
document includes a reference to its disposal in any manner.
UNTRACED SHAREHOLDERS
Power to dispose of shares of untraced shareholders
268. The Company shall be entitled to sell, at the best price reasonably
obtainable, the shares of a member or the shares to which a person is
entitled by transmission if:
(a) during the period of 12 years before the date of the publication
of the advertisements referred to in Article 268(b) (or, if
published on different dates, the first date) (for the purposes of
this Article, the "relevant period") at least three dividends in
respect of the shares in question have been declared and all
dividend warrants and cheques which have been sent in the manner
authorized by these Articles in respect of the shares in question
have remained uncashed;
(b) the Company shall as soon as practicable after expiry of the
relevant period have inserted advertisements both in a national
daily newspaper and in a newspaper circulating in the area of the
last known address of such member or other person giving notice of
its intention to sell the shares;
(c) during the relevant period and the period of three months
following the publication of the advertisements referred to in
Article 268(b) (or, if published
72
on different dates, the first date) the Company has received no
indication either of the whereabouts or of the existence of such
member or person; and
(d) if the shares are listed on the London Stock Exchange, notice
has been given to the London Stock Exchange of the Company's
intention to make such sale before the publication of the
advertisements.
Transfer on sale
269. To give effect to any sale pursuant to Article 268, the Board may:
(a) where the shares are held in certificated form, authorise any
person to execute an instrument of transfer of the shares to, or
in accordance with the directions of, the buyer; or
(b) where the shares are held in uncertificated form, do all acts
and things it considers necessary or expedient to rematerialise
shares into certificated form and/or to effect the transfer of
the shares to, or in accordance with the directions of, the
buyer.
Effectiveness of transfer
270. An instrument of transfer executed by that person in accordance with
Article 269(a) shall be as effective as if it had been executed by the
holder of, or person entitled by transmission to, the shares. An
exercise by the Company of its powers in accordance with Article 269(b)
shall be as effective as if exercised by the registered holder of or
person entitled by transmission to the shares. The transferee shall not
be bound to see to the application of the purchase money, and his title
to the shares shall not be affected by any irregularity in, or
invalidity of, the proceedings in reference to the sale.
Proceeds of sale
271. The net proceeds of sale shall belong to the Company which shall be
obliged to account to the former member or other person previously
entitled for an amount equal to the proceeds. The Company shall enter
the name of such former member or other person in the books of the
Company as a creditor for that amount. In relation to the debt, no
trust is created and no interest is payable. The Company shall not be
required to account for any money earned on the net proceeds of sale,
which may be used in the Company's business or invested in such a way
as the Board from time to time thinks fit.
LIQUIDATION
272. If either or both of the Company and/or Carnival goes into any
voluntary or involuntary Liquidation, the Company and Carnival will,
subject to Article 273 below, make and receive such payments or take
such other actions required to ensure that the holders of Ordinary
Shares of each company would, had each entity 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 then existing
Equalization Ratio, having regard to the Liquidation Exchange Rate but
ignoring any shareholder Tax or Tax Benefit.
73
Liquidation Procedure
273. To establish the amount payable under Article 272, each of the Company and
Carnival will determine the amount of assets (if any) it will have
available for distribution in a Liquidation on the date of Liquidation (or
notional date of Liquidation) to holders of its Ordinary Shares after
payment of all its debts and other financial obligations, including any
tax costs associated with the realisation of any assets on a Liquidation
and any payments due on any preference shares (its "Net Assets"). To the
extent that the Net Assets of one company would enable it to make a
Liquidation Distribution to the holders of its Ordinary Shares that is
greater (taking into account the then existing Equalization Ratio) 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 then existing
Equalization Ratio and having regard to the Liquidation Exchange Rate, but
ignoring any shareholder Tax (including any withholding Tax required to be
deducted by the company concerned) or Tax Benefit ("Equivalent Liquidation
Payments"), then subject to Article 274 such company will make a balancing
payment (or take any other balancing action described in Article 275
below) in such amount as will ensure that both companies may make
Equivalent Liquidation Payments, PROVIDED ALWAYS THAT no company need make
a balancing payment (or take any other action) as described in this
Article 273 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.
274. For purposes of Article 273, the 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 parties with
respect to the payment or receipt of such payment and any such payment may
be made on the Equalization Share issued by the paying company if both the
Board and the Board of Carnival deem it appropriate.
Liquidation Actions
275. In giving effect to the principle regarding a Liquidation of the Company
and/or Carnival described above, the Company and/or Carnival shall take
such action as may be required to give effect to that principle, which may
include:
(a) making a payment (of cash or in specie) to the other company;
(b) issuing shares (which may include the Equalization Share) to the
other party or to holders of Ordinary Shares of the other company
and making a distribution or return on such Ordinary Shares; or
(c) taking any other action that the Board and the Board of Carnival
shall both consider appropriate to give effect to that principle,
provided that any action other than a payment of cash by one company to
the other shall require the prior approval of the Board and the Board of
Carnival.
74
Disposal of assets by liquidator
276. The power of sale of a liquidator shall include a power to sell wholly or
partially for shares or debentures or other obligations of another body
corporate, either then already constituted or about to be constituted for
the purpose of carrying out the sale.
SHARE CONTROL LIMIT
Trigger of limit
277. Subject to Article 278, 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 Company 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 (i) Ordinary Shares held by the Acquiring Person
or over which the Acquiring Person exercises voting control, and (ii)
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 277 to 287. A Triggering
Acquisition can occur more than once and the provisions set forth in
Articles 277 to 287 shall apply to every separate Triggering Acquisition
or series of Triggering Acquisitions; or
Qualifying Takeover Offer
278. Notwithstanding the provisions of Article 277, if:
(a) 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
(b) where the circumstances described in Article 278(a) have not
occurred, such Acquiring Person (i) within 10 days after the date on
which the applicable Triggering Action occurs, makes a binding
public announcement to commence a Qualifying Takeover Offer, and
(ii) within 28 days after making the public announcement referred to
in 278(b)(i), commences a Qualifying Takeover Offer,
then the Acquiring Person Attributable Shares shall not be designated
Combined Group Restricted Shares for the purposes of Articles 278 to 287
hereof until the earliest to occur (if at all) of (x) a withdrawal,
abandonment or termination of such Qualifying Takeover Offer other than in
accordance with its terms, or (y) any amendment, modification or
supplement to the terms of either offer constituting 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 (x) or
(y) above, such Acquiring
75
Person Attributable Shares shall be automatically designated as Combined
Group Restricted Shares.
Determination of Combined Group Excess Shares
279. In the event that any Ordinary Shares are designated Combined Group
Restricted Shares pursuant to Articles 277 or 278:
(a) If the Combined Group Restricted Shares (i) consist entirely of P&O
Princess Ordinary Shares, and (ii) are held by or subject to the
voting control of a single person, then all P&O Princess Ordinary
Shares held by such person or over which such person exercises
voting control which cause the Combined Group City Code Limit to be
equalled or exceeded shall automatically be designated as Combined
Group Excess Shares for the purposes of Articles 286 and 287;
(b) If the Combined Group Restricted Shares consist of both Carnival
Common Stock and P&O Princess Ordinary Shares, and are held by or
subject to the voting control of a single person, then:
(i) if, after giving effect to the Equalization Ratio, (x) the
number of votes represented by such P&O Princess Ordinary
Shares that could be cast with respect to a Joint Electorate
Action exceeds or is equal to (y) the number of votes
represented by such Carnival Common Stock that could be cast
with respect to a Joint Electorate Action, then all P&O
Princess Ordinary Shares held by such person or over which
such person exercises voting control which cause the
Combined Group City Code Limit to be equalled or exceeded
shall automatically be designated as Combined Group Excess
Shares for the purposes of Articles 286 and 287; and
(ii) if, after giving effect to the Equalization Ratio, (x) the
number of votes represented by such P&O Princess Ordinary
Shares that could be cast with respect to a Joint Electorate
Action is less than (y) the number of votes represented by
such Carnival Common Stock that could be cast with respect
to a Joint Electorate Action, such P&O Princess Ordinary
Shares shall automatically be designated as Combined Group
Excess Shares for the purposes of Articles 286 and 287 only
to the extent that such P&O Princess Ordinary Shares would
give such person ownership or voting control equal to or in
excess of the Combined Group City Code Limit, if such limit
was applied without regard to any Carnival Common Stock held
or subject to the voting control of such person.
(c) If the Combined Group Restricted Shares are held by or subject to
the voting control of two or more persons Acting in Concert, where:
(i) all or a part of such Combined Group Restricted Shares would
all have been designated as Combined Group Excess Shares
pursuant to Article 279(a) had they been held by or subject
to the voting control of a single person; or
(ii) all or a part of such Combined Group Restricted Shares would
have been designated as Combined Group Excess Shares
pursuant to Article
76
279(b) 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 Articles 286 and 287 shall be made with respect to
the same number of P&O Princess Ordinary Shares 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 P&O Princess Ordinary Shares each such person holds or
over which each such person exercises voting control.
Authority of the Board
280. The Board shall have the authority to exercise all rights and powers
granted to or vested in the Board or the Company under Articles 277 to 287
and to take any action as it deems necessary or advisable to give effect
to the provisions of Articles 277 to 287, including the right and power to
interpret the provisions of Articles 277 to 278 and to make all
determinations deemed necessary or advisable to give effect to the
provisions of Articles 277 to 287. Without limiting the generality of the
foregoing, the Company shall expressly have the right to effect or procure
a transfer of Combined Group Restricted Shares as described in Articles
277 to 287. In the case of ambiguity in the application of any of the
provisions of Articles 277 to 287, the Board 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. All such
actions, calculation, interpretations and determinations which are done or
made by the Board in good faith shall be final, conclusive and binding on
the Company and all other parties. No Director shall be liable for any act
or omission pursuant to these Articles 277 to 287 if such action was taken
in good faith.
281. Immediately on a trigger of the Combined Group City Code Limit by any
member (or any Acquiring Person), such person(s) shall:
(a) be deemed to irrevocably appoint the Company as his agent for the
sale of the Combined Group Excess Shares, together with all rights
attaching thereto, including, but not limited to, the right to do
all acts and things, receive (on behalf of the Acquiring Person) the
proceeds from the sale of the Combined Group Excess Shares and to
negotiate, sign, execute and deliver all documents on behalf of the
Acquiring Person which it considers necessary and advisable in
connection with the sale of the Combined Group Excess Shares and
such appointment shall endure until the ninetieth day after final
delivery of the proceeds of the sale of all of the relevant Combined
Group Excess Shares to the Company; and
(b) authorise any person to execute an instrument of transfer in respect
of the Combined Group Excess Shares sold to, or in accordance with
the directions of, the Combined Group Excess Share Trustee and/or
any subsequent purchaser. The transferee shall not be bound to see
to the application of any purchase money and his title to the
Combined Group Excess Shares shall not be affected by any
irregularity in or invalidity of the proceedings in relation to the
sale or transfer; and
77
(c) assist the Company in any and all matters or things relating to the
sale of the Combined Group Excess Shares, including, but not limited
to, procuring the appointment of the Company by his nominee or
trustee, as their agent for the sale of the Combined Group
Restricted Shares together with those rights, permissions and
authorisations granted in (i) and (ii) above.
282. Articles 277 to 287 override any other provision of these Articles.
Notice
283. 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 Articles 277
or 278 shall immediately give written notice to the Company of such event
and shall provide to the Company such other information as the Company 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 Excess Shares
under Article 279, and/or (ii) to what extent any Combined Group
Restricted Shares should be designated as Combined Group Excess Shares
pursuant to Article 278.
284. The Company will, as soon as practicable after the Board has knowledge
thereof, notify in writing any person who holds any Combined Group
Restricted Shares; provided that failure by the Company to give any such
notification shall in no way invalidate any of the provisions of Articles
277 to 287. The Company may, at any time after serving such notice
referred to in this Article 284, require that the holder(s) of Combined
Group Restricted Shares provide the Company with such other information as
the Company 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
Excess Shares under Article 279, and/or (ii) to what extent any Combined
Group Restricted Shares should be designated as Combined Group Excess
Shares pursuant to Article 278.
Exclusions
285. The provisions set forth in Articles 277 to 284 and 286 and 287 shall not
apply to:
(a) any Ordinary Shares to the extent that such restrictions are
prohibited pursuant to the Applicable Regulations; or
(b) 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 member
shall not be deemed to have acquired
78
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 Company or of Carnival 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; or
(c) any acquisition by Carnival or any member of the Carnival Group
pursuant to a Mandatory Exchange; or
(d) any acquisition by any member of the Carnival Group of any
Ordinary Shares; or
(e) any acquisition by the Company or any of its Subsidiaries from
time to time of any Ordinary Shares.
COMBINED GROUP EXCESS SHARES
286. The following shall apply to any Combined Group Excess Shares:
Ownership in Trust
(a) Any Combined Group Excess Shares, as soon as possible after
trigger of the Combined Group City Code Limit, shall be
transferred by or on behalf of any Acquiring Person to the
Combined Group Excess Share Trustee, as trustee of the Combined
Group Excess Shares Trust, for the benefit of the Charitable
Beneficiary (subject to the provisions of these Articles). The
Acquiring Person shall, immediately after any trigger of the
Combined Group City Code Limit, have no rights whatsoever in such
Combined Group Excess Shares (except as provided in Articles
286(c), 286(e) and 286(f)), and pending such transfer the Combined
Group Excess Shares shall be held by the Acquiring Person on trust
for the benefit of the Charitable Beneficiary. The Combined Group
Excess Share Trustee may resign at any time so long as the Company
shall have appointed a successor trustee. The Combined Group
Excess Share Trustee shall, from time to time, designate one or
more charitable organisation or organisations as the Charitable
Beneficiary. More than one Combined Group Excess Share Trustee may
be appointed to hold the Combined Group Excess Shares on trust for
one or more Charitable Beneficiaries.
Dividend Rights
(b) Combined Group Excess Shares shall remain entitled to the same
dividends and other distributions as other Ordinary Shares are
entitled to, and any dividend or distribution made or paid on
Combined Group Excess Shares shall, pending transfer of such
shares to the Combined Group Excess Share Trustee, be received by
the relevant Acquiring Person in its capacity as trustee for the
Charitable Beneficiary. Any dividend or distribution declared,
paid or made shall, after the Combined Group Excess Shares have
been transferred to the Combined Group Excess Share Trustee, be
made or paid to the Combined Group Excess Share Trust. All
dividends received or other income earned by the Combined Group
Excess Share Trust shall be paid over to the Charitable
Beneficiary.
79
Rights Upon Liquidation
(c) Upon Liquidation of the Company, an Acquiring Person shall (if it
has not already received consideration for the transfer of the
Combined Group Excess Shares to the Combined Group Excess Share
Trustee) receive, for each Combined Group Excess Share, the amount
per share of any distribution made upon liquidation, dissolution
or winding up less any costs and expenses incurred by the Company,
the Combined Group Excess Share Trustee or the Charitable
Beneficiary in respect of the transfer or holding of such shares.
Voting Rights
(d) Pending a transfer of the Combined Group Excess Shares by an
Acquiring Person, it shall have no rights whatsoever to vote on
those shares and those votes shall not be counted for any purpose
pursuant to these Articles. The Combined Group Excess Share
Trustee shall be entitled (but not required) to vote the Combined
Group Excess Shares on behalf of the Charitable Beneficiary on any
matter. The Charitable Beneficiary will be deemed to have given an
irrevocable proxy to the Combined Group Excess Share Trustee to
vote the Combined Group Excess Shares for its benefit.
Restrictions on Transfer; Designation of Combined Group Excess Share
Trust Beneficiary
(e) At the direction of the Board, the Combined Group Excess Share
Trustee shall transfer the Combined Group Excess Shares held in
the Combined Group Excess Share Trust to a person or persons
(including, without limitation, if permitted under Applicable
Regulations, to the Company pursuant to Article 286(f) below)
whose ownership of such shares shall not cause a trigger of the
Combined Group City Code Limit within 180 days after the later of
(i) the date of triggering of the Combined Group City Code Limit,
and (ii) the date the Board determines or is notified that a
trigger of the Combined Group City Code Limit has occurred. If
such a transfer is made, the interest of the Charitable
Beneficiary shall terminate, the designation of such Ordinary
Shares as Combined Group Excess Shares shall thereupon cease and
the proceeds of such transfer shall be paid to the Acquiring
Person net of any costs incurred by the Company, the Combined
Group Excess Share Trustee and/or the Charitable Beneficiary in
connection with the transfer of the Combined Group Excess Shares
to the Combined Group Excess Share Trustee, the holding by the
Combined Group Excess Share Trustee of the Combined Group Excess
Shares and the transfer of the Combined Group Excess Shares by the
Combined Group Excess Share Trustee to such person(s) in
accordance with this Article 286(e).
Purchase Rights in relation to Combined Group Excess Shares
(f) Combined Group Excess Shares held by the Combined Group Excess
Share Trustee shall be deemed to have been offered for sale by the
Combined Group Excess Share Trustee to the Company, or its
designee, at a price per Combined Group Excess Share equal to the
Market Price less any costs and expenses incurred by the Company,
the Combined Group Excess Share Trustee and/or the Charitable
Beneficiary relating to the transfer or holding of the Combined
80
Group Excess Shares and their subsequent purchase by the Company,
whereby the "relevant date" for determining the Market Price shall
be the date of acquisition of the Combined Group Excess Shares by
the Company. The Company shall, to the extent permitted under
Applicable Regulations, have the right to accept such offer for a
period of ninety (90) days after the later of (i) the date of any
breach of Article 277 and (ii) the date the Board determines there
has been a breach of Article 277 if the Company does not receive a
notice of transfer or other event pursuant to Article 286(e).
Underwritten Offerings
(g) Ordinary Shares or rights, options or warrants for, or securities
convertible into, Ordinary Shares acquired by an underwriter in a
public offering or placement agent in a private offering shall not
be treated as Combined Group Excess Shares, provided that the
underwriter makes a timely distribution of such Ordinary Shares or
rights, options or warrants for, or securities convertible into,
Ordinary Shares 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.
VOTING CONTROL
287. In Articles 277 to 286, (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.
INDEMNITY
Indemnity to directors and officers
288. Subject to the provisions of the Companies Acts but without prejudice
to any indemnity to which a director may otherwise be entitled, every
director or other officer of the Company or of Carnival shall be
indemnified out of the assets of the Company against any liability
incurred by him to the fullest extent permitted under law.
MANDATORY EXCHANGE
289. Following the occurrence of an Exchange Event described in clause (a)
of the definition thereof, the Board may call a general meeting (which
may be an annual general meeting or an extraordinary general meeting)
of the members of the Company to consider whether to effect the
Mandatory Exchange. Such action by the members of the Company shall be
by Supermajority Resolution approved by 66?% of those voting and shall
be a Joint Electorate Action. If the requisite approval is obtained for
an Exchange Event described in clause (a) of the definition thereof the
Board shall, or following the occurrence of an Exchange Event described
in clause (b) of the definition thereof (which, for the avoidance of
doubt shall not require the calling of a general meeting or a
Supermajority Resolution), the Board may, send an Exchange Notice to
each holder of P&O Princess Ordinary Shares (other than non-voting
81
Ordinary Shares held by Carnival or a wholly-owned Subsidiary of
Carnival) notifying such holder of the Mandatory Exchange (as defined
below). On the date specified in the Exchange Notice, which date shall
be not less than fourteen days and no more than thirty days after the
date of the Exchange Notice, the P&O Princess Ordinary Shares held by
each member of the Company (other than the Non-Voting Ordinary Shares
held by Carnival or a wholly-owned subsidiary of Carnival) shall,
subject to the terms and conditions set forth in this Article, be
automatically exchanged for such number of validly issued, fully paid
and non-assessable shares of Carnival Common Stock as are equal to the
number of such P&O Princess Ordinary Shares held by such member at such
time multiplied by the Equalisation Fraction in effect at such time
("Mandatory Exchange"). Notwithstanding the foregoing, there shall be
no entitlement to receive fractional interest in shares and in lieu of
such fractional interest the member shall receive from Carnival an
amount in cash in U.S. dollars at the Applicable Exchange Rate equal to
either:
(a) the product of multiplying the fractional interest by the closing
price of the Carnival Common Stock on the NYSE (as reported in The
Wall Street Journal or, if not reported therein, such other
authoritative source as the Board may determine) on the date that
the Mandatory Exchange is implemented; or
(b) the pro rata entitlement of such member to the net proceeds of the
sale of the aggregate fractional entitlements to Carnival Common
Stock which shall be sold in the market at the best price
reasonably obtainable by Carnival,
provided always that Carnival shall be able to choose whether to apply
the procedure referred to in (a) or (b) above, shall not be obliged to
give any reasons for such choice and such choice shall be conclusive
and binding on all persons concerned and shall not be open to challenge
on any grounds whatsoever.
290. On the day on which Exchange Notices are served pursuant to Article 289
each member shall:
(a) be deemed to irrevocably appoint the Company as his agent to
effect the Mandatory Exchange, including, but not limited to, the
right to do all acts and things, receive (on behalf of the
relevant member) sign, execute and deliver all documents on behalf
of the relevant member which it considers necessary and advisable
in connection with the Mandatory Exchange and such appointment
shall endure until the Mandatory Exchange is completed; and
(b) authorise any director to execute an instrument of transfer in
respect of the P&O Princess Ordinary Shares which are the subject
of the Mandatory Exchange conditional on the issuance of Carnival
Common Stock to the relevant member in accordance with Articles
289 to 292; and
(a) assist the Company in any and all matters or things relating to
the Mandatory Exchange of the P&O Princess Shares held by such
member, including, but not limited to, procuring the appointment
of the Company as their agent for the exchange together with the
rights, permissions and authorisations granted in (a) and (b)
above.
291. To the extent that any of the procedures relating to the implementation
of the Mandatory Exchange are inconsistent with any Applicable
Regulations governing
82
such Mandatory Exchange, such Applicable Regulations shall apply to the
implementation of the Mandatory Exchange, and not such procedures or
the provisions of this Articles 289 to 292.
292. Any resolution or determination of, or any decision or the exercise of
any discretion or power by, the Board under and in accordance with
Articles 289 to 292 shall be final and conclusive and they shall not be
obliged to give any reasons therefor. Any disposal, transfer, exchange,
or other thing done, by or on behalf, or on the authority of the Board
pursuant to this Article shall be conclusive and binding on all persons
concerned and shall not be open to challenge on any grounds whatsoever.
83
Name and address of subscriber Number of shares taken
Michael Gradon One Subscriber Share
The Summer House
18 Granville Road
Limpsfield, Oxted
Surrey RH8 0DA
Nicholas Luff One Subscriber Share
30 Kings Avenue
Carshalton
Surrey SM5 4NX
Date:
Witness to signatures:
84