Exhibit 4.2
P&O Princess Special Voting Trust
Voting Trust Deed
Between
Carnival Corporation
and
The Law Debenture Trust Corporation (Cayman) Limited,
as Trustee,
Dated April 17, 2003
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; CONSTRUCTION ................................ 2
Section 1.01 Definitions .......................................... 2
Section 1.02 Rules of Construction ................................ 5
Section 1.03 Article and Section References ....................... 6
ARTICLE II DECLARATION OF TRUST; ISSUANCE OF SHARES ................. 6
Section 2.01 Creation and Declaration of Trust; Acceptance
by Trustee ........................................... 6
Section 2.02 Covenants of Other Parties ........................... 6
ARTICLE III TRUST POWERS; ADMINISTRATION OF THE TRUST PROPERTY ....... 7
Section 3.01 Administration of the Trust .......................... 7
Section 3.02 P&O Princess Special Voting Share .................... 8
Section 3.03 Required Compliance with Securities Laws and
Stock Exchange Regulations ........................... 8
Section 3.04 Tax Status of the Trust .............................. 9
ARTICLE IV DISTRIBUTIONS AND REPORTS ................................ 9
Section 4.01 Distributions ........................................ 9
Section 4.02 Compliance with Information Reporting and
Withholding Requirements ............................. 9
ARTICLE V THE SHARES ............................................... 9
Section 5.01 The Shares ........................................... 9
Section 5.02 No Voting Rights ..................................... 10
Section 5.03 Issuance of the Shares ............................... 10
Section 5.04 Form of the Shares ................................... 10
Section 5.05 Transfer and Exchange ................................ 11
Section 5.06 Adjustments to Shares ................................ 11
Section 5.07 Mutilated, Destroyed, Lost and Stolen Certificates ... 12
Section 5.08 Distributions in Respect of Shares ................... 12
Section 5.09 Persons Deemed Owners ................................ 12
ARTICLE VI CARNIVAL ................................................. 12
Section 6.01 Limitation on Liability of Carnival .................. 12
Section 6.02 Carnival May Purchase Shares ......................... 13
ARTICLE VII CONCERNING THE TRUSTEE ................................... 13
Section 7.01 Duties of Trustee .................................... 13
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Section 7.02 Certain Matters Affecting the Trustee ................ 14
Section 7.03 Limitation on Liability of Trustee ................... 16
Section 7.04 Trustee Fees and Expenses; Indemnification ........... 16
Section 7.05 Limitation of Powers and Duties ...................... 17
Section 7.06 Resignation or Removal of the Trustee ................ 18
Section 7.07 Successor Trustee .................................... 19
Section 7.08 Merger or Consolidation of Trustee ................... 20
ARTICLE VIII TERM AND TERMINATION ..................................... 20
Section 8.01 Term ................................................. 20
Section 8.02 Termination .......................................... 20
ARTICLE IX MISCELLANEOUS TERMS ...................................... 20
Section 9.01 Amendment ............................................ 20
Section 9.02 Counterparts ......................................... 21
Section 9.03 Limitation on Rights of Shareholders ................. 21
Section 9.04 Governing Law ........................................ 21
Section 9.05 Notices .............................................. 23
Section 9.06 Severability of Terms ................................ 23
Section 9.07 No Recourse .......................................... 23
Section 9.08 Intent of the Parties ................................ 23
Section 9.09 Voting Trust Deed Binding on Shareholders ............ 24
Schedule A: Incorporated Powers
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VOTING TRUST DEED
This Voting Trust Deed (this "Voting Trust Deed") is dated April 17, 2003,
and is made by and between The Law Debenture Trust Corporation (Cayman) Limited
(the "Trust Company," and in its capacity as Trustee hereunder and any successor
thereto appointed hereunder, the "Trustee"), as Trustee, and Carnival
Corporation, a Panamanian corporation ("Carnival"), as depositor, and is being
entered into for the purpose of forming the P&O Princess Special Voting Trust, a
trust established under the laws of the Cayman Islands (the "Trust"), and
providing for the issuance of shares of beneficial interest in the Trust (each a
"Share" and together the "Shares").
PRELIMINARY STATEMENT
P&O Princess Cruises plc ("P&O Princess") and Carnival are parties to an
Offer and Implementation Agreement, dated as of January 8, 2003 (the "Offer and
Implementation Agreement") pursuant to which, among other things, P&O Princess
and Carnival are establishing a dual listed company structure (the "DLC
Transaction") and creating certain rights for the holders (the "Carnival
Stockholders") of Carnival's common stock, par value $0.01 per share (including
any security into which such common stock is reclassified or converted, the
"Carnival Common Stock") and the holders of P&O Princess ordinary shares.
Pursuant to the Offer and Implementation Agreement and immediately prior to
the execution and delivery of this Voting Trust Deed, P&O Princess has issued
the Initial Property to Carnival, and Carnival has transferred to the Trustee,
on behalf of and for the benefit of the Shareholders and without recourse, all
the right, title and interest of Carnival, in, to and under the Initial Property
(the "Deposit") to be held by the Trustee on the terms and conditions set out
herein. The Pairing Agreement and the SVE Special Voting Deed are being entered
into by the parties thereto at the same time that this Voting Trust Deed is
being entered into by the parties hereto.
Pursuant hereto, Carnival and the Trust Company are forming this Trust in
accordance with the laws of the Cayman Islands.
Pursuant to the Offer and Implementation Agreement, and promptly after
receiving the Shares, Carnival shall convey any and all of its interest in the
Shares to Carnival Stockholders.
The Trust Company is willing to act as Trustee hereunder and to hold the
Trust Property upon and subject to the trusts, powers and provisions of this
Voting Trust Deed.
The parties hereto intend that the Trust be classified for United States
federal income tax purposes as an "investment trust" under the Code and United
States Treasury Regulation 301.7701-4(c) and, without limitation, a "grantor
trust" under Subpart E, Part I of Subchapter J of the Code pursuant to which the
Shareholders will be
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considered to own the Trust Property for U.S. federal, state and local income
tax purposes, and not as a trust or association taxable as a corporation or as a
partnership.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree and declare as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.01 Definitions. Except as otherwise specified herein or as the
context may otherwise require, the following terms have the respective meanings
set forth below for all purposes of this Voting Trust Deed:
"Affiliate": With respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Regulations": As defined in the SVE Special Voting Deed.
"Business Day": Any day other than a Saturday, Sunday or day on which
banking institutions in the City of New York, London or the Cayman Islands are
authorized or obligated by law or executive order to close in the United States,
England or the Cayman Islands (or on which such banking institutions are open
solely for trading in euros).
"Carnival Constitution": The articles of incorporation and by-laws of
Carnival in effect immediately following the closing of the DLC Transaction.
"Certificate": A certificate representing shares of Carnival Common Stock
and Shares pursuant to the Pairing Agreement, which may include a copy of the
"Summary of Terms" attached thereto pursuant to Section 3 of the Pairing
Agreement (provided that such certificate alone shall represent Carnival Common
Stock and the Shares even if the "Summary of Terms" is not attached thereto).
"Class Rights Action": As defined in the P&O Princess Articles.
"Closing Date": As defined in the Offer and Implementation Agreement.
"Code": The United States Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
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"Commission": The United States Securities and Exchange Commission or any
successor agency.
"Corporate Trust Office": The office of the Trustee as the Trustee may
designate from time to time by written notice to Carnival. Initially, the
Corporate Trust Office shall be PO Box 1034 GT, Harbour Place, 4th Floor, 103
South Church Street, Grand Cayman, Cayman Islands.
"Deal": In relation to Trust Property or an interest in Trust Property or
the rights attaching to Trust Property, to transfer, assign (by operation of law
or otherwise), convey, create an Encumbrance over or otherwise deal (or agree to
do any of those things) with such Trust Property or interest or rights in any
way whatsoever and "Dealing" shall be construed accordingly.
"Encumbrance": An interest or power (i) reserved in or over any interest in
any asset (including shares) including any retention of title or (ii) created or
otherwise arising in or over any interest in any asset (including shares) under
a bill of sale, mortgage, charge, lien, pledge, trust or power, by way of
security for the payment of debt or any other monetary obligation or the
performance of any other obligation and whether existing or agreed to be granted
or created.
"Equalization Agreement": The Equalization and Governance Agreement, of
even date herewith, between Carnival and P&O Princess.
"Exchange Act": The United States Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder.
"Final Distribution": Either (i) a distribution by the Trustee of all
remaining Trust Property (if any), together with all income thereof accrued but
not yet collected or collected but still on hand, to the Shareholders pro rata
in respect of their Shares or (ii) the setting aside in trust of all remaining
Trust Property (if any) for distribution to the Shareholders pro rata in respect
of their Shares, in each case, in connection with the termination of this Voting
Trust Deed.
"Incorporated Powers": The powers and provisions (i) listed in Schedule A
hereto, or (ii) provided under applicable law.
"Indemnified Party": As defined in Section 7.04.
"Initial Property": The P&O Princess Special Voting Share and any
associated rights.
"Investment Company Act": The United States Investment Company Act of 1940
and the rules and regulations promulgated thereunder.
"Joint Electorate Action": As defined in the P&O Princess Articles.
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"Liability": Any loss, damage, cost, charge, claim, demand, expense,
judgment, action, proceeding or other liability whatsoever (including, without
limitation, in respect of taxes, duties, levies, imposts and other charges) and
including any value added tax or similar tax charged or chargeable in respect
thereof and legal fees and expenses on a full indemnity basis.
"Opinion of Counsel": A written opinion of counsel, who may, except as
otherwise expressly provided in this Voting Trust Deed, be counsel for Carnival,
reasonably acceptable to the Trustee.
"P&O Princess Articles": The Articles of Association of P&O Princess.
"P&O Princess Special Voting Share": The Special Voting Share, nominal
value of(pound)1 in the capital of P&O Princess.
"Pairing Agreement": The Pairing Agreement among the Trustee, Carnival and
the Transfer Agent, of even date herewith, which will, among other things,
provide for the pairing of the Shares with the shares of Carnival Common Stock.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Permitted Activities of the Trustee": To accept delivery of the P&O
Princess Special Voting Share; to perform its obligations and to exercise its
rights under this Voting Trust Deed, the SVE Special Voting Deed, the Pairing
Agreement and the P&O Princess Articles; to cause the issuance of the Shares; to
vote the P&O Princess Special Voting Share in accordance with this Voting Trust
Deed, the SVE Special Voting Deed and the P&O Princess Articles; to make
distributions pursuant to Article IV; and to engage in such other activities as
are necessary or expedient in order for the Trustee to perform its obligations
and exercise its rights, powers, authorities and discretions pursuant to this
Voting Trust Deed, the SVE Special Voting Deed, the Pairing Agreement and the
P&O Princess Articles and to take all steps as it may reasonably consider
appropriate to enforce the performance by each of Carnival and P&O Princess of
its obligations under them.
"Perpetuities Period": (i) If this Voting Trust Deed is governed by the
laws of the Cayman Islands, the 150th anniversary of the date hereof; and (ii)
if the situs of the Trust is changed under Section 9.04(b), the perpetuities
period (if any) of the governing law of the situs of the Trust (provided that
such perpetuities period is equal to or less than the period set out in (i)
above, otherwise the period in (i) above shall continue to apply).
"Proceeding": Any suit in equity, action at law or other judicial or
administrative action or proceeding.
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"Responsible Officer": With respect to the Trustee, as the context
requires, any director of the Trustee or any other officer of the Trustee
customarily performing functions similar to those performed by directors of the
Trustee and also, with respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject.
"Securities Act": The United States Securities Act of 1933 and the rules
and regulations promulgated thereunder.
"Share Register": The register for the Shares, which shall be the share
register of Carnival relating to the holders of Carnival Common Stock.
"Shareholder": At any relevant time, the holder of a Share in accordance
with the Pairing Agreement.
"SVE Special Voting Deed": The SVE Special Voting Deed among DLC SVC
Limited, a company incorporated in England and Wales, Carnival, P&O Princess,
The Law Debenture Trust Corporation p.l.c., a company incorporated in England
and Wales, and the Trustee, of even date herewith, which will, among other
things, set forth the obligations of the Trustee with respect to the P&O
Princess Special Voting Share.
"State": Any one of the 50 states of the United States or the District of
Columbia.
"Termination Date": The earlier of (i) the Business Day immediately
preceding the end of the Perpetuities Period and (ii) the date on which either
the SVE Special Voting Deed or the Equalization Agreement terminates in
accordance with their respective terms.
"Transfer Agent": As defined in the Pairing Agreement.
"Treasury Regulations": The final, temporary or proposed regulations that
have been issued by the U.S. Department of Treasury pursuant to its authority
under the Code, and any successor regulations.
"Trust Property": The Initial Property, any assets added to the Trust
Property and the assets from time to time representing the same, respectively.
"Trustee Protections": As defined in Section 7.06.
"U.S." or "United States": The United States of America (including the
States), its territories, its possessions and other areas subject to its
jurisdiction.
Section 1.02 Rules of Construction. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
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(b) an accounting term not otherwise defined has the meaning assigned to it
in accordance with generally accepted accounting principles as in effect in the
United States from time to time;
(c) "or" is not exclusive;
(d) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Voting Trust Deed as a whole and not to any particular
Article, Section or other subdivision;
(e) any reference to an agreement or other instrument shall be to such
agreement or other instrument, as amended from time to time, unless otherwise
specified;
(f) "including" means including without limitation; and
(g) words in the singular include the plural and words in the plural
include the singular.
Section 1.03 Article and Section References. All Article and Section
references used in this Voting Trust Deed, unless otherwise provided, are to
Articles and Sections in this Voting Trust Deed. Any reference to "this Section"
appearing within a particular paragraph of a Section is a reference to such
Section as a whole.
ARTICLE II
DECLARATION OF TRUST; ISSUANCE OF SHARES
Section 2.01 Creation and Declaration of Trust; Acceptance by Trustee. The
Trustee hereby acknowledges receipt of the Initial Property and declares that
subject to the provisions of this Voting Trust Deed, it will hold the Trust
Property in trust for the exclusive benefit of the Shareholders in accordance
with the trusts, powers and provisions of this Voting Trust Deed, including,
without limitation, the Trustee's obligations to make distributions to the
Shareholders in accordance with Section 4.01.
Section 2.02 Covenants of Other Parties. To the extent that the Trustee may
be a party to a contract under which one or more other parties to that contract
may make covenants or promises or both in favour of the Trustee as trustee of
this Trust (including the covenants and promises of Carnival in this Trust
Deed), the Trustee shall not hold the benefit of those covenants and promises on
trust for the beneficiaries of this Trust, the benefit of those covenants and
promises shall not form part of the Trust Property, and the Trustee shall not be
obliged to enforce those covenants and promises.
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ARTICLE III
TRUST POWERS; ADMINISTRATION OF THE TRUST PROPERTY
Section 3.01 Administration of the Trust.
(a) The Trustee shall administer the Trust Property for the benefit of
the Shareholders. In administering the Trust Property, the Trustee shall perform
all its duties set forth herein. The duties of the Trustee shall be performed in
accordance with applicable law.
(b) Subject to Article VII, the Trustee is hereby authorized to
perform, and from time to time hereafter, shall perform only those acts which
are described in this Voting Trust Deed as obligations of the Trustee.
Notwithstanding the foregoing, the Trustee is hereby authorized to perform the
Permitted Activities of the Trustee.
(c) In furtherance of its performance of the Permitted Activities of
the Trustee, the Trustee may exercise the Incorporated Powers, which shall be
incorporated herein by reference; provided that the Trustee shall not exercise
any of its powers contrary to the express provisions of this Voting Trust Deed.
Notwithstanding anything to the contrary herein, the Trustee shall not engage in
any business or activities other than the Permitted Activities of the Trustee.
The Trustee shall not vary the investment of the Trust or engage in any business
or activity which will cause the Trust to be required to be registered under the
Investment Company Act or which would cause the Trust to be taxed as an
association or publicly traded partnership taxable as a corporation or otherwise
alter the classification of the Trust for U.S. federal income tax purposes.
(d) The Trustee shall not engage in any activity other than as required
or authorized by this Voting Trust Deed. In particular, the Trustee shall not
and shall not cause the Trust to (i) invest any proceeds (if any) received by
the Trustee from holding the Trust Property, but shall promptly distribute all
such proceeds to the Shareholders pursuant to the terms of this Voting Trust
Deed, except as allowed pursuant to the principles set forth in Rev. Rul. 75-192
1975-1 C.B. 384, as amended or modified by subsequent changes in applicable law;
(ii) except as required by this Voting Trust Deed, the Pairing Agreement, the
SVE Special Voting Deed or the P&O Princess Articles, Deal in the P&O Princess
Special Voting Share or other Trust Property, any interest of the Trustee
therein or any right of the Trustee thereto; (iii) acquire any assets other than
as expressly provided herein; (iv) act in such a way as to vary the Trust
Property in a manner that would cause the Trust to no longer qualify as an
investment trust under the Code and Treasury Regulation 301.7701-4(c) and,
without limitation, as a grantor trust under Subpart E, Part I of Subchapter J
of the Code pursuant to which the Shareholders will be considered to own the
Trust Property for U.S. federal, state and local income tax purposes; (v) incur
any indebtedness for borrowed money or issue any other debt; or (vi) issue any
securities or other evidences of beneficial ownership of, or beneficial interest
in, the Trust other than the Shares.
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(e) The Trustee may sell at any time, all or any part of the Trust
Property if it has obtained the consent of both Carnival and P&O Princess, such
consent to be in the absolute discretion of Carnival and P&O Princess, each with
regard to its own respective interest; provided, however, that any such sale
must be carried out in accordance with, the principles set forth in Rev. Rul.
78-149, 1978-1 C.B. 448, as amended or modified by subsequent changes in
applicable law, and the Trustee must act, or if appropriate, not act in a manner
that permits the Trust to continue to qualify as an investment trust under the
Code and Treasury Regulation 301.7701-4(c) and, without limitation, as a grantor
trust under Subpart E, Part I of Subchapter J of the Code pursuant to which the
Shareholders will be considered to own the Trust Property for U.S. federal,
state and local income tax purposes. No sale of Trust Property pursuant to this
Section 3.01(e) shall be effective unless and until the transferee of such
property, as consented to by Carnival and P&O Princess, has agreed to be bound
by the terms of this Voting Trust Deed. Any sale of Trust Property in violation
of this Section 3.01(e) shall be null and void. For the avoidance of doubt, in
no event shall (i) any of the proceeds of a sale of the Trust Property be
distributable to anyone other than the Shareholders or (ii) the Trustee have any
power to reinvest any proceeds of a sale of Trust Property, it being understood
that the Trustee must distribute such proceeds to the Shareholders.
(f) Notwithstanding any other section of this Voting Trust Deed, the
Trustee shall not take any action that is reasonably likely to (i) impair the
interests of the Trustee in the P&O Princess Special Voting Share or any other
Trust Property, (ii) impair the value of the P&O Princess Special Voting Share
or any other Trust Property or (iii) require the Trustee or the Trust to be
registered under the Investment Company Act, and the Trustee shall not fail to
take any action that is reasonably likely to avoid any of the matters referred
to in clause (i), (ii) or (iii) above.
Section 3.02 P&O Princess Special Voting Share. The Trustee shall
exercise the votes attaching to the P&O Princess Special Voting Share from time
to time in accordance with the SVE Special Voting Deed and the P&O Princess
Articles.
Section 3.03 Required Compliance with Securities Laws and Stock
Exchange Regulations. The Trustee shall make any filings that are necessary or
appropriate under the Securities Act relating to the issuance of Shares under
this Voting Trust Deed or any deemed issuance of the P&O Princess Special Voting
Share by P&O Princess under the Securities Act. The Trustee shall also make any
filings that are necessary or appropriate under the Exchange Act or the rules of
any national securities exchange or automated quotation system on which the
Shares, the P&O Princess Special Voting Share or the shares of Carnival Common
Stock are listed. Notwithstanding the foregoing, if any such filings would
require any information to be given about the Trustee's parent company (or any
other entity within its corporate group) which is not already in the public
domain and currently made available by such parent company or other entity to
its shareholders, the Trustee shall be entitled to require Carnival to use all
reasonable efforts as shall be required to avoid any such filings having to be
made or, at the request of Carnival, the Trustee shall resign and be replaced by
a successor trustee in accordance with Section 7.06 prior to any such filings
having to be made.
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Section 3.04 Tax Status of the Trust. Notwithstanding any other
provision of this Voting Trust Deed or the SVE Special Voting Deed, the Trustee
must always act, or if appropriate, not act, in a manner that permits the Trust
(i) to continue to qualify as an investment trust under the Code and Treasury
Regulation 301.7701-4(c) including, without limitation, by acting in accordance
with the principles set forth in Rev. Rul. 75-192 1975-1 C.B. 384, as amended or
modified by subsequent changes in applicable law, and (ii) to continue to
qualify as a grantor trust under Subpart E, Part I of Subchapter J of the Code
pursuant to which the Shareholders will be considered to own the Trust Property
for U.S. federal, state and local income tax purposes.
ARTICLE IV
DISTRIBUTIONS AND REPORTS
Section 4.01 Distributions.
(a) Subject to Article III, the Trustee shall, from time to time and at
any time prior to the Termination Date, distribute to or pay or apply to or for
the use or benefit of the Shareholders, pro rata, according to their holdings of
Shares, the net income of the Trust, as soon as practicable after the receipt of
such income.
(b) The Trustee shall make the Final Distribution to the Shareholders
against presentation and surrender of the Certificates representing their Shares
on the date scheduled for the Final Distribution pursuant to Section 8.02(a).
Section 4.02 Compliance with Information Reporting and Withholding
Requirements. The Trustee shall comply with United States federal withholding
and backup withholding tax laws and information reporting requirements with
respect to any payments to Shareholders in respect of the Shares.
ARTICLE V
THE SHARES
Section 5.01 The Shares. The Trust shall consist of a single class of
shares of beneficial interest. The Trustee may issue an unlimited number of
Shares. Each Share represents an equal, absolute, identical, undivided interest
in the Trust Property. The Trustee shall hold the Trust Property upon trust for
the Shareholders absolutely.
Section 5.02 No Voting Rights. The Shares shall have no voting rights.
For the avoidance of doubt, the Shareholders shall not have the right to direct
the vote or decide any other matters with respect to the P&O Princess Special
Voting Share by virtue of their ownership of Shares.
Section 5.03 Issuance of the Shares.
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(a) In accordance with Section 3(a) of the Pairing Agreement, on the
date hereof, the Trustee shall authorize and issue to Carnival one Share for
each issued and outstanding share of Carnival Common Stock, each evidencing an
equal, absolute, identical, undivided interest in the entire Trust Property.
(b) Upon each issuance of additional shares of Carnival Common Stock by
Carnival, the Trustee shall authorize and issue to Carnival a number of
additional Shares equal to the number of additional shares of Carnival Common
Stock issued by Carnival.
(c) On the date hereof, the Trustee shall authorize for issuance Shares
to be issued upon the conversion or exercise of any securities convertible into
or exercisable for shares of Carnival Common Stock or any rights, options or
warrants to purchase shares of Carnival Common Stock (collectively, "Carnival
Derivative Securities"), which were issued by Carnival prior to the date hereof
and which have not been previously converted or exercised. Upon conversion or
exercise of such Carnival Derivative Securities, such number of Shares equal to
the number of shares of Carnival Common Stock the exercising or converting
holder of such Carnival Derivative Securities is entitled to receive upon such
exercise or conversion shall be issued to Carnival.
(d) After the date hereof, if Carnival notifies the Trustee that it
intends to issue Carnival Derivative Securities, the Trustee shall take such
action (including, without limitation, the authorization and issuance of
additional Shares to Carnival) as is required to be taken by it to authorize the
issuance of Shares as contemplated herein and in the Pairing Agreement, and
Carnival shall take all actions as may be necessary to permit the Trustee to
effect such action. Shares shall be issued to Carnival upon the conversion or
exercise of such Carnival Derivative Securities.
(e) Except as provided in Section 5.03 and in the Pairing Agreement,
the Trustee shall not issue any Shares.
(f) The Trustee's obligations under Sections 5.03 (a) through (d) are
subject to Section 7 of the Pairing Agreement.
Section 5.04 Form of the Shares.
(a) The Shares issued to Carnival on the date hereof in accordance with
Section 5.03(a), shall be evidenced, after their distribution to holders of
shares of Carnival Common Stock in accordance with Section 3(a) of the Pairing
Agreement, by Certificates representing Carnival Common Stock registered in the
names of the holders thereof. The surrender for transfer of any Certificate
representing shares of Carnival Common Stock outstanding on or prior to the date
hereof, with or without a copy of the Summary of Terms attached thereto, shall
also constitute the surrender for transfer of the Shares represented thereby.
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(b) The Shares and Carnival Common Stock shall together be evidenced by
Certificates, not by separate certificates or other instruments. The Shares
shall only be transferable as provided in Section 5.05 or in Section 1 of the
Pairing Agreement.
Section 5.05 Transfer and Exchange. So long as shares of Carnival
Common Stock and Shares are outstanding:
(a) each Share shall, immediately following the transfer from Carnival
to the holders of shares of Carnival Common Stock by dividend or otherwise, be
paired with one share of Carnival Common Stock in accordance with the terms of
the Pairing Agreement;
(b) if a share of Carnival Common Stock is transferred, one Share shall
be transferred along with such share of Carnival Common Stock;
(c) each share of Carnival Common Stock shall not be transferred
without the corresponding Share, and each Share shall not be transferred without
the corresponding share of Carnival Common Stock;
(d) the Shares and the shares of Carnival Common Stock shall not be
represented by separate instruments but shall be represented by Certificates;
and
(e) the transfer agent and registrar with respect to the Trust Shares
shall be the same bank or trust company as Carnival may appoint, from time to
time, for the shares of Carnival Common Stock.
Section 5.06 Adjustments to Shares.
(a) The Trustee shall not declare, make or pay any distribution or
dividend consisting in whole or in part of Shares, or subdivide, combine,
reclassify, cancel or retire such Shares, except as required by Section 5.06(b)
of this Voting Trust Deed or Section 6 of the Pairing Agreement.
(b) After the date hereof:
(i) if Carnival declares or pays any distribution consisting in
whole or in part of shares of Carnival Common Stock, or subdivides or combines
such shares of Carnival Common Stock, then (x) the Trustee shall effect such
corresponding issues, subdivisions or combinations of Shares as are necessary to
maintain the pairing relationship of one share of Carnival Common Stock to each
Share, as certified to it by Carnival in accordance with Section 7 of the
Pairing Agreement, and (y) Carnival shall take all such actions as may be
necessary to permit the Trustee to effect such corresponding issues,
subdivisions or combinations of Shares;
(ii) if Carnival otherwise reclassifies the shares of Carnival
Common Stock, then (x) the Trustee shall effect such transactions as are
necessary to
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maintain the pairing relationship of the securities into which one share of
Carnival Common Stock was so reclassified to each Share, as certified to it by
Carnival in accordance with Section 7 of the Pairing Agreement, and (y) Carnival
shall take all actions as may be necessary to permit the Trustee to effect such
transactions; and
(iii) if Carnival cancels or retires any shares of Carnival Common
Stock, then the Trustee shall cancel or retire the Shares that correspond to
such canceled or retired shares of Carnival Common Stock, as certified to it by
Carnival in accordance with Section 7 of the Pairing Agreement.
Section 5.07 Mutilated, Destroyed, Lost and Stolen Certificates.
Section 5.4 of the Bylaws of Carnival shall apply to mutilated, destroyed, lost
or stolen Certificates.
Section 5.08 Distributions in Respect of Shares. Distributions with
respect to a Share shall be made to the Person in whose name such Share is
registered at the close of business on the record date for such distribution.
Distributions in respect of Shares (other than the Final Distribution) shall be
made by check mailed to the address of the Shareholder entitled thereto as such
address shall appear in the Share Register.
Section 5.09 Persons Deemed Owners. Subject to Section 5.08, Carnival,
the Trustee and any agent of Carnival or the Trustee may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions in respect of Shares represented by such
Certificate and for all other purposes whatsoever, and none of Carnival, the
Trustee or any agent of Carnival or the Trustee shall be affected by notice to
the contrary.
ARTICLE VI
CARNIVAL
Section 6.01 Limitation on Liability of Carnival.
(a) Except for obligations expressly set out in this Voting Trust Deed,
Carnival shall not be under any obligation to expend or risk its own funds,
except to the extent of its obligation to pay any amount payable under Section
7.04(b) hereof, or otherwise incur financial liability in the performance of its
duties hereunder or in the exercise of any of its rights or powers if reasonable
grounds exist for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not assured to it.
(b) Without prejudice to Carnival's liability to the Trustee under
Section 7.04 hereof, neither Carnival nor any of its directors, officers,
employees or agents shall be liable, for any losses, costs or damages or
otherwise, to the Trustee or the Shareholders for any act or omission of
Carnival except for its willful misconduct, bad faith or gross negligence in the
performance of duties specifically set forth in this Voting Trust Deed, the
Pairing Agreement and the SVE Special Voting Deed.
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(c) Carnival shall not be under any obligation to appear in, prosecute
or defend any Proceeding; provided, however, that Carnival may in its discretion
undertake any such Proceeding which it may deem necessary or desirable with
respect to this Voting Trust Deed.
Section 6.02 Carnival May Purchase Shares. Carnival or its Affiliates
may at any time purchase Shares in the open market or otherwise. Shares so
purchased by Carnival may, at the discretion of Carnival, be held or resold.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01 Duties of Trustee.
(a) The Trustee undertakes to perform such duties and only such duties
as are specifically (i) set forth in this Voting Trust Deed, the Pairing
Agreement, the SVE Special Voting Deed, and the P&O Princess Articles, or (ii)
imposed by applicable law. Any permissive right of the Trustee enumerated in
this Voting Trust Deed, the Pairing Agreement, the SVE Special Voting Deed or
the P&O Princess Articles shall not be construed as a duty.
(b) No provision of this Voting Trust Deed shall be construed to
relieve the Trustee from liability for its fraud or negligence in the
performance of any of its duties under this Voting Trust Deed or the willful
default or willful breach of its obligations under this Voting Trust Deed;
provided, however, that:
(i) the duties and obligations of the Trustee shall be determined
solely by the express terms of this Voting Trust Deed and by applicable law, the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Voting Trust Deed, no implied
covenants or obligations (except for a fiduciary duty to the Shareholders as
beneficiaries of the Trust) shall be read into this Voting Trust Deed against
the Trustee and the Trustee may conclusively rely upon any certificates or
opinions furnished to the Trustee as to the truth and correctness of any
statements contained therein;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers under this Voting Trust
Deed if there is reasonable ground for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
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Section 7.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 7.01:
(i) Carnival shall give to the Trustee or any person approved by
Carnival and appointed in writing by the Trustee such information as the Trustee
or such appointed person shall reasonably require (other than material
non-public information ) for the purpose of the discharge of the powers, duties
and discretions vested in the Trustee under this Voting Trust Deed, the Pairing
Agreement, or the SVE Special Voting Deed. All information provided by Carnival
under this section shall be in writing and contained in a certificate of a duly
authorized officer of Carnival.
(ii) The Trustee shall be at liberty to accept a certificate or
notice signed or purporting to be signed by any director of Carnival or the
secretary of Carnival or any other duly authorized officer or person, as
appropriate, and shall be at liberty to accept such certificate or notice in
order to satisfy any factor or matter upon which the Trustee may require to be
satisfied in the performance of any of its obligations and the exercise of any
of the powers, authorities and discretions under this Voting Trust Deed, the
Pairing Agreement, the SVE Special Voting Deed, or the P&O Princess Articles or
a statement to the effect that in the opinion of the persons so certifying any
particular dealing, transaction, step or thing is expedient. The Trustee shall
not be in any way bound to call for further evidence nor to verify the accuracy
of the contents of such certificate, report, statement or notice or the due
authorization, authority or position of the person or persons purporting to sign
it nor be responsible for any losses, liabilities, costs, damages, actions,
demands or expenses or for any breach of any of the provisions of this Voting
Trust Deed, the Pairing Agreement, the SVE Special Voting Deed, or the P&O
Princess Articles that may be occasioned by accepting or acting or relying on
any such certificate, report, statement or notice.
(iii) The Trustee may in the proper performance of its obligations
and the exercise of the powers, authorities and discretions vested in it under
this Voting Trust Deed, the Pairing Agreement, the SVE Special Voting Deed or
the P&O Princess Articles act on the opinion or advice of or information
obtained from any lawyer, banker, valuer, accountant or the share registrar or
transfer agent at such time of Carnival or other expert or of Carnival itself,
whether obtained by Carnival or the Trustee or otherwise (including, without
limitation, an Opinion of Counsel), and in such case, provided that (except
where advice is received from Carnival itself) the Trustee shall have acted
reasonably in its choice of any such person (or, in the case of an Opinion of
Counsel, such counsel is counsel for Carnival), the Trustee shall not be
responsible for any losses, liabilities, costs, claims, actions, damages,
expenses or demands which it or any other person may incur or which may be made
against it or any other person in connection with or occasioned by so acting.
Any such opinion, advice or information may be sought or obtained by electronic
mail, letter, facsimile or other means of written communication. The Trustee
shall not be liable for acting on any opinion, advice or information or for
acting on, implementing and giving effect to any decision, determination or
adjustment purporting to be conveyed by any such written
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communication reasonably appearing on its face to be authentic even though it
contains an error or is not authentic.
(iv) Except for the duties and obligations of the Trustee
expressly created by this Voting Trust Deed, the Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it by this Voting
Trust Deed or to institute, conduct or defend any Proceeding hereunder or in
relation thereto, at the request, order or direction of any of the Shareholders.
(v) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it and believed by it to be authorized or within
the rights or powers conferred upon it by this Voting Trust Deed; provided that
any such action taken, suffered or omitted is not attributable to fraud or
negligence on the part of the Trustee in the performance of its duties under
this Voting Trust Deed or the willful default or willful breach of its
obligations under this Voting Trust Deed.
(vi) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
approval, bond or other paper or document.
(vii) The Trustee may execute any of the trusts or powers or
perform any duties under this Voting Trust Deed either directly or by or through
corporate representatives, proxies, agents, attorneys or custodians. For the
avoidance of doubt, the Trustee shall have no liability whatsoever for
supervising or otherwise for, any of the actions (or failures) of any transfer
agent under the Pairing Agreement.
(viii) the Trustee shall not be deemed to have notice or actual
knowledge of any matter unless (1) a Responsible Officer assigned to and working
in the Corporate Trust Office has actual knowledge thereof or (2) written notice
thereof is received by the Trustee in accordance with Section 9.05.
(ix) the Trustee shall not incur any liability for and have no
responsibility for verifying the accuracy of, the content of any information
submitted to it or prepared by Carnival or P&O Princess for distribution to
Shareholders or for any tax consequences that may result from being a
Shareholder.
(b) Subject to any and all rights reserved to the Trustee hereunder,
including, without limitation, the Trustee's right to indemnity under Section
7.04(b), all rights of action under this Voting Trust Deed or under any of the
Shares, enforceable by the Trustee, may be enforced by it without the possession
of any of the Shares, or the production thereof at the trial or other Proceeding
relating thereto, and any Proceeding instituted by the Trustee on behalf of the
Trust may be brought in its name for the benefit of all the Shareholders,
subject to the terms of this Voting Trust Deed.
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Section 7.03 Limitation on Liability of Trustee.
(a) The Trustee assumes no responsibility for the correctness of the
recitals contained in this Voting Trust Deed, the Pairing Agreement or the SVE
Special Voting Deed, the Shares, the Certificates or any document issued in
connection with the issuance of the Shares. The Trustee makes no representations
or warranties as to the validity or sufficiency of this Voting Trust Deed, the
Pairing Agreement or the SVE Special Voting Deed, the Shares, the Certificates,
the P&O Princess Special Voting Share or any related document. The Shares and
the Certificates do not represent interests in or obligations of the Trustee
personally, and the Trustee shall not be responsible or accountable for any tax,
accounting or other treatment proposed to be applied to the Shares, the
Certificates or any interest therein.
(b) Notwithstanding any other provision in this Voting Trust Deed, the
Pairing Agreement or the SVE Special Voting Deed, the Trustee shall not be bound
to take any steps to ascertain whether any breach of any of the provisions of
this Voting Trust Deed, or the Pairing Agreement or the SVE Special Voting Deed
by any party other than the Trustee has occurred or may occur in the future and,
until it has actual knowledge to the contrary, the Trustee shall be entitled to
assume that no such breach has occurred or will occur in the future and shall
not be liable to any Person for any Liabilities incurred by that Person as a
result of a breach having occurred.
(c) Notwithstanding any other provision in this Voting Trust Deed or
the Pairing Agreement, the Trustee shall not be under any obligation to appear
in, prosecute or defend any Proceeding with respect to the enforcement of
Carnival's or the Transfer Agent's respective obligations under the Pairing
Agreement or in connection with any breach by Carnival or the Transfer Agent of
their respective obligations under the Pairing Agreement.
Section 7.04 Trustee Fees and Expenses; Indemnification.
(a) Carnival shall pay or ensure that payment is made to the Trustee
such fees as may be agreed from time to time between Carnival and the Trustee
for the performance by the Trustee of its obligations under this Voting Trust
Deed.
(b) In addition to any other indemnity available to the Trustee under
applicable law, Carnival shall indemnify and keep indemnified the Trustee (for
itself and as trustee on behalf of its directors, officers, employees,
controlling persons (including, without limitation, any Affiliate of the
Trustee) and every attorney, manager, agent, delegate or other person appointed
by it under this Voting Trust Deed, the Pairing Agreement or the SVE Special
Voting Deed, each an "Indemnified Party") against all Liabilities and expenses
properly incurred by each Indemnified Party in or as a result of (i) the
performance or purported performance of the Trustee's obligations under this
Voting Trust Deed, the Pairing Agreement or the SVE Special Voting Deed, (ii)
any exercise of any powers, authorities or discretions vested in the Trustee or
such other Indemnified Party pursuant to this Voting Trust Deed, the Pairing
Agreement and/or the SVE Special Voting Deed or (iii) any matter or thing done
or omitted in any way relating
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to this Voting Trust Deed, the Pairing Agreement and/or the SVE Special Voting
Deed, including without limitation, the institution by the Trustee of any
Proceedings in respect of any default by Carnival or P&O Princess; provided,
however, that the indemnity available to the Trustee and each other Indemnified
Party under this Section 7.04(b) shall not extend to any Liability incurred by
reason of fraud or negligence on the part of the Trustee or, as the case may be,
any other Indemnified Party, or the willful default or willful breach of the
Trustee's obligations under this Voting Trust Deed, the Pairing Agreement and/or
the SVE Special Voting Deed.
(c) With respect to any Proceeding, the relevant Indemnified Party
shall notify Carnival promptly of any claim for which it may seek indemnity.
Failure by the relevant Indemnified Party to so notify Carnival shall not
relieve Carnival of its obligations, hereunder, except and to the extent only
that such failure prevents Carnival from having a reasonable opportunity to
defend the relevant Proceeding. Carnival may, by written notice to the Trustee,
assume the defense of any Proceeding (other than any Proceeding in which the
Trustee is being sued by or on behalf of Carnival (or any Affiliate of
Carnival)), and, if Carnival does so, the Trustee shall cooperate (at Carnival's
expense) in such defense. If Carnival assumes such defense: (i) it shall consult
in good faith with the Trustee with respect to the conduct of such defense and
shall not agree to any settlement or compromise with respect to such Proceeding
without the consent of the Trustee (such consent not to be unreasonably withheld
or delayed); and (ii) the Trustee may, at Carnival's expense, employ separate
legal counsel and participate in such defense if, in the reasonable opinion of
such counsel, there are one or more legal defenses available to the Trustee
which are inconsistent with or additional to those proposed to be raised or
pleaded by Carnival in such Proceeding or if, in the reasonable opinion of the
Trustee, there is or there subsequently arises any conflict of interest between
the Trustee and Carnival arising out of or otherwise in connection with the
conduct of the Proceeding. Nothing in this Voting Trust Deed shall oblige the
Trustee to participate in, or permit Carnival to raise, any defense which might,
in the Trustee's reasonable opinion, constitute a breach of any law or
regulation or be otherwise actionable against the Trustee at the suit of any
person. If the Indemnified Party maintains control of the defense of the
Proceeding, it shall consult in good faith with Carnival in preparing its
defense and Carnival shall cooperate in such defense. Carnival need not pay for
any settlement made without its consent, which consent shall not be unreasonably
withheld or delayed.
Section 7.05 Limitation of Powers and Duties. The Trust is established
solely for the purposes of acquiring and holding the Trust Property, entering
into and performing its obligations and exercising its rights under this Voting
Trust Deed, the SVE Special Voting Deed, the Pairing Agreement and the P&O
Princess Articles, issuing the Shares and engaging in activities incidental to
the foregoing. The Trustee is not permitted to incur any debt except as is
necessary to achieve the foregoing. The Trustee is not authorized to acquire any
other investments or engage in any activities not authorized in this Voting
Trust Deed, the SVE Special Voting Deed, P&O Princess Articles or the Pairing
Agreement and, in particular, the Trustee is not authorized (i) to Deal in the
P&O Princess Special Voting Share or interests therein or rights thereto except
as required or permitted in this Voting Trust Deed, the SVE Special Voting Deed,
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P&O Princess Articles or the Pairing Agreement or (ii) to do anything that would
cause the Trust to (1) be required to be registered under the Investment Company
Act or (2) cause the Trust to be taxed as an entity other than investment trust
under the Code and United States Treasury Regulation 301.7701-4(c) and, without
limitation, a grantor trust under Subpart E, Part I of Subchapter J of the Code
pursuant to which the Shareholders will be considered to own the Trust Property
for U.S. federal, state and local income tax purposes, or otherwise alter the
classification of the Trust for U.S. federal, state and local income tax
purposes.
Section 7.06 Resignation or Removal of the Trustee.
(a) Subject to Section 7.06(c), the Trustee may at any time resign and be
discharged from its obligations and duties under this Voting Trust Deed, the
Pairing Agreement and the SVE Special Voting Deed by giving written notice
thereof to Carnival. Upon receiving such notice of resignation, Carnival shall
as promptly as possible (and in any event within 45 calendar days after the date
of such notice of resignation) appoint a successor Trustee (in accordance with
this Voting Trust Deed) by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee and to the successor Trustee. If no
successor Trustee that has been so appointed shall have accepted appointment
within 90 calendar days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee. Upon any appointment of a successor Trustee
pursuant to this Section 7.06(a), Carnival shall be solely liable for (i) the
payment of such successor Trustee's fees and expenses and (ii) provision of
adequate indemnities satisfactory to such successor Trustee (it being understood
that the indemnification obligations of Carnival pursuant to Section 7.04(b)
shall inure to the benefit of such successor Trustee). For the avoidance of
doubt and notwithstanding any other provisions of this Voting Trust deed, any
resignation, retirement or removal of a Trustee shall not release or prejudice
in any way any of the Trustee's rights to be indemnified by Carnival and the
other protections afforded to it by Article VII of this Voting Trust Deed (such
indemnification and other protections being referred to as "Trustee's
Protections") which Trustee Protections shall continue in full force and effect
and continue to be enforceable by the Trustee notwithstanding such resignation,
retirement or removal.
(b) At any time, Carnival or its designee may make a written request that
the Trustee resign. Upon the agreement of the Trustee to so resign or if the
Trustee fails to resign within a reasonable time after written request therefor
by Carnival or such designee (and in no event later than 10 days after the
Trustee shall have received such written request), or if at any time the Trustee
shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or
a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
Carnival or such designee may remove the Trustee and appoint a successor Trustee
by written instrument, in duplicate, which instrument shall be delivered to the
Trustee so removed and to the successor Trustee.
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(c) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the terms of this Section 7.06 shall not
become effective until acceptance of appointment by the successor Trustee as
provided in Section 7.07.
(d) Notwithstanding any other provision of this Section 7.06, any
appointment of a successor Trustee pursuant to any of the terms of this Section
7.06 shall be effective if, and only if, Carnival appoints a successor Trustee
(other than Carnival) that is not related or subordinate to Carnival or P&O
Princess, within the meaning of Section 672(c) of the Code, and such designated
successor so qualifies as Trustee. Carnival may at any time release the powers
granted under this paragraph.
(e) The statutory power of appointing a new Trustee shall not become
exercisable by reason only that a Trustee remains out of the Cayman Islands for
more than 12 months.
(f) The stipulation of Section 6(c) of the Trusts Law (2001 Revision) of
the Cayman Islands or any statutory modification or reenactment thereof that a
Trustee shall not be discharged from his trust unless there will be either a
trust corporation or at least two individuals to act as trustees to perform the
trust is hereby excluded and, in any event, each and every person actually or
prospectively interested in the Trust Property is hereby excluded from asserting
any claim against a Trustee or former Trustee on the basis of the said
stipulation save to the extent of any trust monies or other trust assets
actually in the possession or control of such Trustee or former Trustee.
Section 7.07 Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 7.06 shall
execute, acknowledge and deliver to Carnival and its predecessor Trustee an
instrument accepting such appointment under this Voting Trust Deed, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of the predecessor Trustee under this Voting Trust Deed, with the
like effect as if originally named as Trustee in this Voting Trust Deed. The
predecessor Trustee shall deliver to the successor Trustee all documents and
statements held by it under this Voting Trust Deed, and Carnival and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor Trustee all such rights, powers, duties and
obligations.
(b) Upon acceptance of appointment by a successor Trustee as provided in
this Section 7.07, the predecessor Trustee shall novate its rights and
obligations under the Pairing Agreement and the SVE Special Voting Deed to such
successor Trustee.
Section 7.08 Merger or Consolidation of Trustee. Any corporation or
association into or with which the Trustee may be merged, amalgamated or
converted
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or with which it may be consolidated or any corporation or association resulting
from any merger, amalgamation, conversion or consolidation to which the Trustee
shall be a party, or any corporation or association succeeding to the business
of the Trustee, shall be the successor of the Trustee under this Voting Trust
Deed, without the execution or filing of any paper or any further act on the
part of any of the parties to this Voting Trust Deed, anything in this Voting
Trust Deed to the contrary notwithstanding.
ARTICLE VIII
TERM AND TERMINATION
Section 8.01 Term. Subject to the terms of the Voting Trust Deed and to the
powers conferred by law, the Trust Property and the income of the Trust Property
shall be held on the Termination Date for the Shareholders absolutely pro rata
in accordance with Shares held.
Section 8.02 Termination.
(a) On the Termination Date, the Trustee shall fix the date of the Final
Distribution, which shall be as soon as reasonably possible thereafter, and
shall on that date make the Final Distribution, after which the Trust shall be
dissolved.
(b) The respective obligations and responsibilities under this Voting Trust
Deed and the Pairing Agreement and of Carnival and the Trustee (other than the
obligations of the Trustee to provide reports and other information under this
Voting Trust Deed and to make distributions to Shareholders as herein set forth
and the obligations of Carnival under Section 7.04) shall terminate upon the
effectuation of the Final Distribution.
ARTICLE IX
MISCELLANEOUS TERMS
Section 9.01 Amendment.
(a) This Voting Trust Deed may be amended from time to time in writing by
Carnival and the Trustee without the consent of any of the Shareholders: (i) if
such amendment does not materially and adversely affect the rights of any
Shareholder under this Voting Trust Deed; (ii) to cure any ambiguity or to
correct or supplement any provision in this Voting Trust Deed which may be
defective or inconsistent with any other provision in this Voting Trust Deed,
the Pairing Agreement, the SVE Special Voting Deed or the P&O Princess Articles;
(iii) to add to the covenants, restrictions or obligations of Carnival for the
benefit of the Shareholders; (iv) to comply with the requirements of the law
governing this Voting Trust Deed if such governing law is changed under Section
9.04(b); (v) to comply with any requirements imposed by the Commission or the
Code or to qualify the Trust as a "grantor trust" under Subpart E, Part I of
Subchapter J of the Code; (vi) to amend or waive the terms of Section 7.04(b) in
any
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manner which shall not adversely affect the Shareholders in any material
respect; or (vii) to evidence and provide for the acceptance of appointment
under this Voting Trust Deed by a successor Trustee.
(b) Notwithstanding the foregoing, this Voting Trust Deed may also be
amended from time to time in writing by Carnival and the Trustee with the
consent of Shareholders holding a majority of the outstanding Shares.
(c) Notwithstanding the foregoing, no amendment to this Voting Trust Deed
shall be effective if it causes the Trust not to be classified for U.S. federal,
state and local income tax purposes as an "investment trust" under the Code and
Treasury Regulation 301.7701-4(c) and, without limitation, as a grantor trust
under Subpart E, Part I of Subchapter J of the Code pursuant to which the
Shareholders will be considered to own the Trust Property for U.S. federal,
state and local income tax purposes, and not as a trust or association taxable
as a corporation or as a partnership.
Section 9.02 Counterparts. This Voting Trust Deed may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 9.03 Limitation on Rights of Shareholders.
(a) The death or incapacity of any Shareholder shall not (1) operate to
terminate this Voting Trust Deed or the Trust Property, (2) entitle such
Shareholder's legal representatives or heirs to claim an accounting or to take
any Proceeding in any court for a partition or winding up of the Trust Property
or (3) otherwise affect the rights, obligations and liabilities of the parties
thereto or any of them.
(b) No Shareholder shall have any right to control the operation and
management of any Trust Property, or the obligations of the parties thereto, nor
shall anything in this Voting Trust Deed, the Pairing Agreement or the SVE
Special Voting Deed set forth, or contained in the terms of the Shares or the
Certificates, be construed so as to constitute the Shareholders from time to
time as partners or members of an association. In addition, no Shareholder shall
be under any liability to any third person by reason of any action taken by the
parties to this Voting Trust Deed pursuant to any provision thereof.
Section 9.04 Governing Law.
(a) This Voting Trust Deed and each Share shall initially be governed by
and construed in accordance with the laws of the Cayman Islands the courts of
which shall be the forum of administration of the Trust. The Trustee, however,
is prohibited from exercising any power or discretion granted under said laws
that would be inconsistent with the qualification of the trust as an investment
trust under the Code and Treasury Regulation 301.7701-4(c) and, without
limitation, as a grantor trust under Subpart E, Part I of Subchapter J of the
Code pursuant to which the Shareholders will be
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considered to own the Trust Property for U.S. federal, state and local income
tax purposes. Notwithstanding the foregoing, the Trustee may upon obtaining the
consent of Carnival, at any time and from time to time, by written instrument,
declare that the Trust hereunder shall from the date of such declaration, or
from a date stated in such declaration, take effect in accordance with the law
of such other jurisdiction as it and Carnival, in their sole and absolute
discretion, determine, and thereafter the law of such other jurisdiction shall
govern the validity and construction of the Trust hereunder; provided, however,
that if the Trustee exercises the discretionary power under this Section 9.04(a)
to change the situs and governing jurisdiction of the Trust under this Voting
Trust Deed, it may initiate such judicial proceedings (if any) as it deems
necessary or desirable to accomplish such change, whether or not such proceeding
is required by the law of the new governing jurisdiction. However, nothing in
this section 9.04(a) shall be construed as allowing the Trustee to exercise this
power in a manner that will result in the trust failing to qualify as an
investment trust under the Code and Treasury Regulation 301.7701-4(c) and,
without limitation, as a grantor trust under Subpart E, Part I of Subchapter J
of the Code pursuant to which the Shareholders will be considered to own the
Trust Property for U.S. federal, state and local income tax purposes.
(b) For so long as the Trust is a trust established under the laws of the
Cayman Islands, Carnival irrevocably appoints Walkers of PO Box 265GT, Walker
House, Mary Street, George Town, Grand Cayman, Cayman Islands, fax number: +345
949 7886 as its agent to receive on its behalf in the Cayman Islands service of
such proceedings arising out of or in connection with this Voting Trust Deed.
Such service shall be deemed completed on delivery to such agent (whether or not
it is forwarded to and received by Carnival). If for any reason such agent
ceases to be able to act as agent or no longer has an address in the Cayman
Islands, Carnival shall forthwith appoint a substitute acceptable to the Trustee
and deliver to the Trustee the new agent's name, address and fax number.
(c) At any time or times, without prior court approval but subject to
applicable legal limitations and subject as mentioned below, upon the written
request of Carnival, the Trustee shall move (or decline to move) all or part of
the assets or the situs of administration of the trust from one jurisdiction to
another jurisdiction and, in connection with such move, this Voting Trust Deed
and each Share shall be governed by and construed in accordance with the laws of
such other jurisdiction. The determination of Carnival as to any such removal or
change of situs may be made by them for any reason, including, without
limitation, the convenience of Carnival, P&O Princess, the Trustee or of the
Shareholders; provided, however, that nothing in this Section 9.04(b) shall be
construed as allowing Carnival to exercise this power in a manner that will
result in the trust failing to qualify at all times for U.S. federal, state and
local income tax purposes as an "investment trust" under the Code and Treasury
Regulation 301.7701-4(c) and, without limitation, as a grantor trust under
Subpart E, Part I of Subchapter J of the Code pursuant to which the Shareholders
will be considered to own the Trust Property for U.S. federal, state and local
income tax purposes. The Trustee shall not be obliged to take any action under
this Section 9.04(b) unless and until:
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(i) it has had a reasonable opportunity to take such professional
advice (at the expense of Carnival) as it may properly require as to the effect
on it and its rights, obligations and liabilities arising under this Voting
Trust Deed and/or (where relevant) the Pairing Agreement and the SVE Special
Voting Deed of the proposed move of assets or change of situs of administration;
and
(ii) it has agreed to such amendments and/or additional provisions
to this Voting Trust Deed with Carnival and/or (where relevant) to the Pairing
Agreement and the SVE Special Voting Deed with the parties thereto, as it may
require as a condition of continuing to act as Trustee under this Voting Trust
Deed, the Pairing Agreement and the SVE Special Voting Deed following such move
of assets or change of situs.
Section 9.05 Notices. All directions, demands and notices under this Voting
Trust Deed shall be delivered in accordance with Section 15 of the Pairing
Agreement.
Section 9.06 Severability of Terms. If any one or more of the covenants,
agreements or terms of this Voting Trust Deed shall be for any reason whatsoever
held invalid, then such covenants, agreements or terms shall be deemed severable
from the remaining covenants, agreements or terms of this Voting Trust Deed and
shall in no way affect the validity or enforceability of the other terms of this
Voting Trust Deed or of the Shares or the rights of the Shareholders.
Section 9.07 No Recourse. Each Shareholder, by its acceptance of a Share,
acknowledges that such Share represents an equal, absolute, identical, undivided
interest in the Trust Property only and does not represent an interest in or
obligation of Carnival, the Trustee or any Affiliate of Carnival (other than the
Trust, if the Trust is deemed to be an Affiliate of Carnival) or the Trustee and
no recourse may be had against such Persons or their respective assets.
Section 9.08 Intent of the Parties. The parties intend that the Trust shall
at all time be classified for U.S. federal, state and local income tax purposes
as an "investment trust" under the Code and Treasury Regulation 301.7701-4(c)
and, without limitation, as a grantor trust under Subpart E, Part I of
Subchapter J of the Code pursuant to which the Shareholders will be considered
to own the Trust Property for U.S. federal, state and local income tax purposes,
and not as a trust or association taxable as a corporation or as a partnership.
Each Shareholder, by its acceptance of its Shares, agrees to treat the Trust as
a grantor trust for all U.S. federal, state and local income tax purposes.
Notwithstanding any other provision of this Voting Trust Deed, the Pairing
Agreement or the SVE Special Voting Deed, the provisions of this Voting Trust
Deed shall be interpreted to further this intention and powers granted as well
as obligations undertaken pursuant to this Voting Trust Deed shall be construed
so as to further such intent. No provision of this Voting Trust Deed shall be of
any force or effect if such provision would result in the Trust being treated in
a manner inconsistent with the intention of the parties as set forth in this
Section 9.08.
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Section 9.09 Voting Trust Deed Binding on Shareholders. Each Person
becoming a Shareholder in accordance with the terms hereof and knowingly
accepting a Share shall be bound by this Voting Trust Deed.
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IN WITNESS WHEREOF, Carnival and the Trustee have caused this instrument to
be duly executed as a deed as of the date first above written.
The Corporate Seal of
CARNIVAL CORPORATION,
was hereunto affixed in the
presence of
_______________________________
Name: Howard S. Frank
Title: Vice-Chairman and
Chief Operating Officer
The Common Seal of
THE LAW DEBENTURE CORPORATION (CAYMAN) LIMITED, as Trustee,
was hereunto affixed in the presence of
_______________________________
Name:
Title:
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SCHEDULE A
Incorporated Powers
Subject to Section 3.04 of this Voting Trust Deed, the Trustee shall have the
following powers:
Section 1.01 Additional Powers
The Trustee shall have the following powers in addition to those conferred by
law:
(a) With respect to any property comprised in the Trust Property power
to exercise all powers relating thereto as if beneficially entitled
thereto and without being restricted in any way by the office of
trustee including (without prejudice to the generality of the
foregoing power) -
(i) Power to vote upon or in respect of any shares securities
bonds notes or other evidence of interest in or obligations of
any corporation trust association or concern whether or not
the exercise of such power affects the security or the
apparent security of the Trust Property or the purchase or
sale or lease of the assets of any such corporation trust
association or concern; and
(ii) Power to give proxies or powers of attorney with or without
power of substitution for voting or acting on behalf of the
Trustee as the owner of any such property.
(b) In the event of any duties fees or taxes whatsoever becoming
payable in any part of the world in respect of the Trust Property
or any part thereof in any circumstances whatsoever power to pay
all such duties fees or taxes out of the Trust Property or the
income thereof with discretion as to the time and manner in which
the said duties fees or taxes shall be paid and the Trustee may pay
such duties fees or taxes notwithstanding that the same shall not
be recoverable from the Trustee or from any persons interested
under the trusts of this instrument or that the payment shall not
be to the advantage of such persons;
(c) Power to institute prosecute and defend any suits or actions or
other proceedings affecting the Trustee or the Trust Property and
to compromise any matter of difference or to submit such matter to
arbitration and to compromise or compound any debt owing to the
Trustee or any other claims and to adjust any disputes in relation
to debts or claims against it as trustee upon evidence that the
Trustee shall deem sufficient and to make partition upon such terms
(including if thought fit the payment or receipts of equality
money) as the Trustee shall deem desirable with co-owners or joint
tenants besides the Trustee having any interest in any property in
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which the Trustee is interested and to make partition either by
sale or by set-off or by agreement or otherwise;
(d) Power to take at the expense of the Trust Property or the income
thereof the opinion of legal counsel concerning any question
arising under this instrument or on any matter in any way relating
to the Trust Property or the duties of the Trustee in connection
with this instrument And the Trustee shall not be liable for any
action taken in good faith pursuant to or otherwise in accordance
with the opinion or advice of such counsel;
(e) Power to employ and pay at the expense of the capital or income of
the Trust Property any agent or agents in any part of the world
whether solicitors bankers accountants stockbrokers managers or
other persons (including any trustee of this instrument or any
corporate trustee or any parent subsidiary or affiliate of such
corporate trustee) to transact any business or to do any act
requiring to be transacted or done in execution of the trusts of
this instrument including the receipt and payment of money and the
execution of documents and in any such event the trustee, the
corporate trustee or the parent subsidiary or the affiliate of such
corporate trustee is entitled to charge and be paid and to retain
for his or its own account all usual professional and other fees
and commissions normally paid for such services including fees and
commissions shared with other agents;
Trustee may exercise power despite personal interest
(f) Power for all or any Trustee to exercise or join or concur in
exercising all or any of the powers and discretions by this
instrument or by law given to the Trustee notwithstanding that such
trustee may have a personal interest in the mode or result of
exercising any such power or discretion or may be interested
therein in some other fiduciary capacity but any trustee may
abstain from acting except as a merely formal party in any matter
in which he may be so interested as aforesaid and may allow his
co-trustees to act alone in the exercise of such powers and
discretions in relation to such matter; and
To release fiduciary power
(g) Power from time to time by deed revocable or irrevocable wholly or
partially to release extinguish or restrict any power by this
instrument or by law conferred on the Trustee notwithstanding the
fiduciary nature of any such power (but not so as to invalidate any
prior exercise thereof).
Section 3.01 Exclusion of apportionments
Unless the Trustee in its absolute discretion shall otherwise determine all
dividends and other income received shall be treated for all purposes as income
accruing at the due date
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of payment whether or not such dividends or income may have been earned and
accrued wholly or partially in respect of a period prior to such date.
Section 4.01 Protection of third parties in dealings with trustees
(a) No person or corporation dealing with the Trustee and no purchaser
on any sale made by the Trustee shall be concerned to enquire into
the propriety or validity of any act of the Trustee or to see to
the application of any money paid or property transferred to or
upon the order of the Trustee.
(b) No firm association or corporation any of whose securities are
comprised in the Trust Property and no purchaser or person dealing
with any trustee purporting to act under any delegation of
authority from any other trustee shall be required to ascertain or
enquire whether a case exists in which such delegation is permitted
or whether such delegated authority is still subsisting.
(c) When anything is dependent upon the value of any property or the
existence of any fact a certificate of the Trustee as to such value
or fact shall be conclusive in favour of anyone acting thereon in
good faith.
Section 5.01 Trustee not bound to interfere with company management
The Trustee shall not be bound or required to interfere in the management or
conduct of the affairs or business of any company in which the Trust Property
may be invested (and whether or not the Trustee has control of such company) And
so long as no trustee of this instrument has notice of any wilful negligence
wilful default or fraud or dishonesty on the part of the directors having the
management of such company they may leave the same (including the payment or
non-payment of dividends) wholly to such directors And no beneficiary is
entitled as such beneficiary in any way to compel control or forbid the exercise
(including in any particular manner) of any voting or other rights at any time
vested in the Trustee with regard to such company including without prejudice to
the generality of the foregoing any powers the Trustee may have (even if also
directors of such company) of compelling such company to distribute any
dividend.
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