DATED April 17, 2003
Exhibit 4.3
CARNIVAL CORPORATION
DLC SVC LIMITED
P&O PRINCESS CRUISES PLC
THE LAW DEBENTURE TRUST CORPORATION (CAYMAN) LIMITED
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
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SVE SPECIAL VOTING DEED
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION ......................................... 1
2. NOTIFICATION OF VOTES CAST ON JOINT ELECTORATE ACTIONS AT A
PARALLEL SHAREHOLDER MEETING AND CALCULATION OF SPECIFIED
NUMBER ................................................................. 8
3. NOTIFICATION OF OUTCOME ON VOTE ON CLASS RIGHTS ACTIONS ................ 9
4. ATTENDANCE AT MEETINGS AND VOTING ...................................... 9
5. DEALINGS ............................................................... 13
6. OBLIGATIONS SUBJECT TO APPLICABLE REGULATIONS .......................... 14
7. DEFAULT BY CARNIVAL OR P&O PRINCESS .................................... 14
8. SUPPLY OF INFORMATION; CONFIDENTIALITY ................................. 14
9. REMUNERATION AND EXPENSES OF DLC SVC AND P&O PRINCESS TRUSTEE .......... 15
10. POWER OF DLC SVC AND P&O PRINCESS TRUSTEE .............................. 16
11. INDEMNITIES ............................................................ 18
12. ACTIVITIES ............................................................. 18
13. GOVERNANCE MATTERS ..................................................... 19
14. AMENDMENTS TO THIS DEED ................................................ 19
15. DAMAGES NOT ADEQUATE REMEDY ............................................ 20
16. TERMINATION ............................................................ 20
17. GENERAL ................................................................ 21
THIS SVE SPECIAL VOTING DEED is dated as of April 17, 2003
BETWEEN
(1) CARNIVAL CORPORATION, a Panamanian corporation, having its principal place
of business at Carnival Place, 3655 N.W. 87/th/ Avenue, Miami, Florida,
33178-2428 ("Carnival");
(2) DLC SVC LIMITED, a company incorporated in England and Wales, having its
registered office at Fifth Floor, 100 Wood Street, London EC2V 7EX ("DLC
SVC");
(3) P&O PRINCESS CRUISES PLC, a company incorporated in England and Wales
(Registered No 4039524) and having its registered office at 77 New Oxford
Street, London, WC1A 1PP ("P&O Princess");
(4) THE LAW DEBENTURE TRUST CORPORATION (CAYMAN) LIMITED, in its capacity as
the trustee (the "P&O Princess Trustee") of P&O Princess Special Voting
Trust ("P&O Princess SVT"), a trust formed under the laws of the Cayman
Islands pursuant to the Voting Trust Deed between Carnival and the P&O
Princess Trustee of even date herewith (the "Voting Trust Deed"); and
(5) THE LAW DEBENTURE TRUST CORPORATION P.L.C., a company incorporated in
England and Wales, having its registered office at Fifth Floor, 100 Wood
Street, London EC2V 7EX (the "DLC SVC Owner").
Recitals
(A) Carnival and P&O Princess entered into the Implementation Agreement
pursuant to which Carnival and P&O Princess have agreed to do certain acts
and things to implement the DLC Structure and create certain rights for the
Carnival shareholders and the P&O Princess shareholders in respect of their
indirect interests in the combined enterprise.
(B) DLC SVC and the P&O Princess Trustee have agreed to carry out certain
functions in accordance with the provisions of this Deed in connection with
their ownership of the Carnival Special Voting Share and the P&O Princess
Special Voting Share, respectively.
(C) The DLC SVC Owner is the legal and beneficial owner of all the shares in
DLC SVC.
(D) The P&O Princess Trustee is the trustee of P&O Princess SVT.
IT IS AGREED on and from Completion as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless otherwise specified in this Deed:
"Applicable Regulations" has the same meaning as in the Equalization
Agreement;
1
"Board of Carnival" means the board of directors of Carnival (or a duly
appointed committee of that board) from time to time;
"Boards of Carnival and P&O Princess" means the Board of Carnival and the
Board of P&O Princess;
"Board of P&O Princess" means the board of directors of P&O Princess (or a
duly appointed committee of that board) from time to time;
"Business Day" has the same meaning as in the Equalization Agreement;
"Carnival Common Stock" has the meaning given to it in the Carnival
Constitution;
"Carnival Constitution" means the Articles of Incorporation and the By-Laws
of Carnival which will be in effect immediately following Completion, as
amended from time to time;
"Carnival Entrenched Provision" has the same meaning as in the Carnival
Constitution;
"Carnival Equivalent Number" has the same meaning as in the Equalization
Agreement;
"Carnival Guarantee" has the same meaning as in the Equalization Agreement;
"Carnival Group" has the same meaning as in the Equalization Agreement;
"Carnival Special Voting Share" means the special voting share of US$0.01
in Carnival;
"Carnival Specified Numbers" means, in relation to a resolution to consider
a Joint Electorate Action at a meeting of P&O Princess shareholders, (i)
the number of votes Cast in favour of the Equivalent Resolution of Carnival
at the Parallel Shareholder Meeting of Carnival shareholders divided by the
Carnival Equivalent Number in effect at the time such meeting of P&O
Princess shareholders is held rounded up to the nearest whole number; (ii)
the number of votes Cast against the Equivalent Resolution of Carnival at
the Parallel Shareholder Meeting of Carnival shareholders divided by the
Carnival Equivalent Number in effect at the time such meeting of P&O
Princess shareholders is held, rounded up to the nearest whole number; and
(iii) the number of votes Cast as formal abstentions in relation to the
Equivalent Resolution of Carnival at the Parallel Shareholder Meeting of
Carnival shareholders divided by the Carnival Equivalent Number in effect
at the time such meeting of P&O Princess shareholders is held, rounded up
to the nearest whole number;
"Cast" means, separately, the number of votes recorded (i) in favour; (ii)
against; and (iii) formally abstained (including votes withheld) in
accordance with the terms of the P&O Princess Articles or the Carnival
Constitution (as applicable) by holders of Carnival Common Stock (and of
any other stock in Carnival (other than the Carnival Special Voting Share)
that from time to time are entitled to vote on the relevant resolution) or
P&O Princess Ordinary Shares (and of any other shares in P&O Princess
(other than the P&O Princess Special Voting Share) that from time to time
are entitled to vote on the relevant resolution), as the context requires;
2
"Class Rights Action" means any of the following actions by P&O Princess or
Carnival:
(i) the voluntary Liquidation of such company for which the approval of
shareholders is required by Applicable Regulations or otherwise
sought other than a voluntary Liquidation of both companies 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;
(ii) the sale, lease exchange or other disposition of all or substantially
all of the assets of such 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 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;
(iii) any adjustment to the Carnival Equivalent Number or the Equalization
Ratio otherwise than in accordance with the provisions of the
Equalization Agreement;
(iv) except where specifically provided for in the relevant agreements,
any amendment to the terms of, or termination of, the Equalization
Agreement, this Deed, the P&O Princess Guarantee or the Carnival
Guarantee (including, for the avoidance of doubt, the voluntary
termination of either Guarantee);
(v) any amendment to, removal 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;
(vi) 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
Carnival Articles 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 of such term in the P&O Princess
Articles to occur; and
(vii) the doing of anything which the Boards of Carnival and P&O Princess
agree (either in a particular case or generally), in their absolute
discretion, should be approved as a Class Rights Action;
"Code" means the United States Internal Revenue Code of 1986, as amended,
and Treasury Regulations promulgated thereunder.
"Completion" means the time at which the steps set out in Section 2.2 of
the Implementation Agreement have been completed;
"Deal" in relation to property or an interest in property or the rights
attaching to property, means 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
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property or interest or rights in any way whatsoever and "Dealing" shall be
construed accordingly;
"DLC Structure" means the structure created by the combination of Carnival
and P&O Princess by means of a dual listed company structure whereby,
amongst other things, Carnival and P&O Princess have a unified management
structure and the businesses of both the Carnival Group and the P&O
Princess Group are managed on a unified basis in accordance with the
provisions of the Equalization Agreement;
"Encumbrance" means an interest or power:
(a) reserved in or over any interest in any asset (including shares)
including any retention of title; or
(b) 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" means the Equalization and Governance Agreement
entered into between Carnival and P&O Princess on the same date as this
Deed;
"Equalization Ratio" has the same meaning as in the Equalization Agreement;
"Equivalent Resolution" means a resolution of either Carnival or P&O
Princess, as applicable, certified in accordance with this Deed by a duly
authorised officer of Carnival and a duly authorised officer of P&O
Princess (as applicable) as equivalent in nature and effect to a resolution
of the other company. (For example, a resolution to appoint an individual
as a director of Carnival or to appoint the auditors of Carnival would, if
a resolution considering such matters in relation to P&O Princess were put
to a meeting of P&O Princess' shareholders, be the equivalent resolution
(provided that a duly authorised officer of Carnival and a duly authorised
officer of P&O Princess give the certification described above) to a
resolution to appoint the same individual as a director of P&O Princess or
to appoint the auditors of P&O Princess, and vice versa. In addition, if a
resolution was proposed by one of the companies (the "Proposing Company")
that did not need to be proposed by the other company (the "Other
Company"), (e.g. a resolution for the approval of the disapplication of
pre-emption rights if under Applicable Regulations this needs to be
approved by P&O Princess' shareholders, but not by Carnival's
shareholders), then the Proposing Company would put that resolution to a
meeting of its shareholders and the same or substantially the same
resolution (provided that a duly authorised officer of Carnival and a duly
authorised officer of P&O Princess give the certification described above)
would also be put to a meeting of the Other Company's shareholders, to
enable both sets of shareholders to vote on that resolution);
"Exchange Act" means the Securities Exchange Act of 1934;
"Guarantee" has the same meaning as in the Equalization Agreement;
"Governmental Agency" has the same meaning as in the Equalization
Agreement;
4
"Implementation Agreement" means the Offer and Implementation Agreement,
dated as of 8 January 2003, between Carnival and P&O Princess;
"Joint Electorate Action" means all actions put to shareholders of P&O
Princess or Carnival, except for Class Rights Actions or resolutions of a
procedural or technical nature. For the avoidance of doubt, the following
actions, if put to the holders of Carnival Common Stock or P&O Princess
Ordinary Shares, shall constitute Joint Electorate Actions: (i) the
appointment, removal or re-election of any director of Carnival or P&O
Princess, or both of them; (ii) to the extent such receipt or adoption is
required by Applicable Regulations, the receipt or adoption of the
financial statements of Carnival or P&O Princess, 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;
(iii) a change of name of either Carnival, P&O Princess, or both of them;
and (iv) the appointment or removal of the auditors of the Carnival or P&O
Princess, or both of them;
"Liquidation" has the same meaning as in the Equalization Agreement;
"Majority Resolution" means, with respect to Carnival or P&O Princess, a
resolution duly approved at a meeting of the shareholders of such company
by the affirmative vote of a majority of all the votes Voted on such
resolution by all shareholders of such company entitled to vote thereon
(including, where appropriate, the holder of the Special Voting Share of
such company) who are present in person or by proxy at such meeting;
"NYSE" means the New York Stock Exchange, Inc.;
"Pairing Agreement" means the Pairing Agreement, of even date herewith,
among the P&O Princess Trustee, Carnival and the transfer agent;
"Parallel Shareholder Meeting" means, in relation to Carnival or P&O
Princess, any meeting of the shareholders of that company which is:
(a) nearest in time to, or is actually contemporaneous with, the meeting
of the shareholders of the other company and at which some or all of
the same resolutions or some or all of the Equivalent Resolutions are
to be considered; or
(b) designated by the Board of Carnival or the Board of P&O Princess, as
the case may be, as the parallel meeting of shareholders of a
particular meeting of shareholders of the other company;
"P&O Princess Articles" means the Articles of Association of P&O Princess
which will be in effect as immediately following Completion as amended from
time to time;
"P&O Princess Entrenched Provision" has the same meaning as in the P&O
Princess Articles;
"P&O Princess Guarantee" has the same meaning as in the Equalization
Agreement;
"P&O Princess Group" has the same meaning as in the Equalization Agreement;
5
"P&O Princess Ordinary Shares" has the meaning given to it in the P&O
Princess Articles;
"P&O Princess Special Voting Share" means the special voting share of
(Pounds)1 in P&O Princess;
"P&O Princess Specified Numbers" means, in relation to a resolution to
consider a Joint Electorate Action at a meeting of Carnival shareholders
(i) the number of votes Cast in favour of the Equivalent Resolution of P&O
Princess at the Parallel Shareholder Meeting of P&O Princess shareholders
multiplied by the Carnival Equivalent Number in effect at the time such
meeting of Carnival shareholders is held, rounded up to the nearest whole
number; (ii) the number of votes Cast against the Equivalent Resolution of
P&O Princess at the Parallel Shareholder Meeting of P&O Princess
shareholders multiplied by the Carnival Equivalent Number in effect at the
time such meeting of Carnival shareholders is held, rounded up to the
nearest whole number; and (iii) the number of votes Cast as formal
abstentions (including votes withheld) in relation to the Equivalent
Resolution of P&O Princess at the Parallel Shareholder Meeting of P&O
Princess shareholders multiplied by the Carnival Equivalent Number in
effect at the time such meeting of Carnival shareholders is held, rounded
up to the nearest whole number;
"Shares" means, in relation to P&O Princess, the P&O Princess Ordinary
Shares and, in relation to Carnival, the Carnival Common Stock;
"Special Resolution" has the same meaning as in the P&O Princess Articles;
"Special Voting Share" means, in relation to P&O Princess, the P&O Princess
Special Voting Share and, in relation to Carnival, the Carnival Special
Voting Share;
"Subsidiary" means with respect to P&O Princess or Carnival, any entity,
whether incorporated or unincorporated, in which P&O Princess or Carnival
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 P&O Princess or Carnival otherwise has
the power to direct;
"Supermajority Resolution" means, with respect to Carnival or P&O Princess,
a resolution required by Applicable Regulations and/or the Carnival
Constitution or the P&O Princess Articles, as relevant, to be approved by a
higher percentage of votes Voted than required under a Majority Resolution,
or where the percentage of votes Voted in favour and against the resolution
is required to be calculated by a different mechanism to that required by a
Majority Resolution;
"Treasury Regulations" means 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; and
"Voted" means the number of votes recorded in favour of and against a
particular resolution at a shareholders' meeting of either P&O Princess or
Carnival by holders of Shares, holders of any other class of shares
entitled to vote and the holder of the relevant Special Voting Share
PROVIDED THAT votes recorded as abstentions by holders of Carnival Common
Stock or P&O Princess Ordinary Shares (or any other
6
class of shares entitled to vote) shall not be counted as having been Voted
for these purposes.
1.2 Interpretation
The headings herein are for convenience of reference only and do not
constitute part of this Deed and shall not be deemed to limit or otherwise
affect any of the provisions hereof. The following rules of interpretation
apply unless the context requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have a
corresponding meaning.
(d) A reference to a person includes a body corporate, an unincorporated
body or other entity.
(e) A reference to a clause is to a clause of this Deed unless otherwise
indicated.
(f) A reference to any party to this Deed or any other agreement or
document includes the party's successors and permitted assigns.
(g) A reference to any agreement or document is to that agreement or
document as amended, novated, supplemented, varied or replaced from
time to time, except to the extent prohibited by this Deed.
(h) A reference to any legislation (including any listing rules of a stock
exchange or voluntary codes) or to any provision of any legislation
includes any modification or re-enactment of it, any legislative
provision substituted for it and all rules and regulations and
statutory instruments issued thereunder.
(i) A reference to $ is to US dollars and a reference to(pound)is to
pounds sterling.
(j) A reference to conduct includes any omission and any statement or
undertaking, whether or not in writing.
(k) A reference to writing includes a facsimile transmission and any other
means of reproducing words in a tangible and permanently visible form.
(l) Whenever the words "include", "includes" or "including" are used in
this Deed, they shall be deemed to be followed by the words "without
limitation";
(m) A reference to a body, other than a party to this Deed (including, an
institute, association, authority or Governmental Agency), whether
statutory or not:
(i) which ceases to exist; or
(ii) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which substantially
succeeds to its powers or functions.
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(n) All references to time are to local time in the place where the
relevant obligation is to be performed (or right exercised).
1.3 Business Day
Where the day on or by which any thing is to be done is not a Business Day,
that thing must be done on or by the Business Day following such day.
2. NOTIFICATION OF VOTES CAST ON JOINT ELECTORATE ACTIONS AT A PARALLEL
SHAREHOLDER MEETING AND CALCULATION OF SPECIFIED NUMBER
2.1 Notification by Carnival
Carnival agrees with the P&O Princess Trustee and P&O Princess that, in
relation to each meeting of Carnival shareholders at which any resolution
relating to a Joint Electorate Action is to be considered, Carnival shall,
as soon as possible after the Carnival shareholders (other than DLC SVC)
entitled to vote on any such resolution Cast those votes at such
shareholder meeting, deliver to the P&O Princess Trustee and P&O Princess
in writing in accordance with clause 17.5 a certificate of a duly
authorised officer of Carnival setting forth the details in clauses (a) and
(b) below:
(a) how the votes were Cast (including the number of votes Cast) at the
meeting of Carnival shareholders in relation to each such Equivalent
Resolution for a Joint Electorate Action; and
(b) its calculation of the Carnival Specified Numbers applicable to the
P&O Princess Special Voting Share for each Equivalent Resolution for a
Joint Electorate Action and of the way in which the P&O Princess
Trustee is required to vote the Carnival Specified Numbers attaching
to the P&O Princess Special Voting Share in relation to each such
Equivalent Resolution at the Parallel Shareholder Meeting of P&O
Princess in accordance with this Deed and the P&O Princess Articles.
2.2 Notification by P&O Princess
P&O Princess agrees with DLC SVC and Carnival that, in relation to each
meeting of P&O Princess shareholders at which any resolution relating to a
Joint Electorate Action is to be considered, P&O Princess shall, as soon as
possible after the P&O Princess shareholders (other than the P&O Princess
Trustee) entitled to vote on any such resolution Cast those votes at such
shareholder meeting, deliver to DLC SVC and Carnival in writing in
accordance with clause 17.5 a certificate of a duly authorised officer of
P&O Princess setting forth the details in clauses (a) and (b) below:
(a) how the votes were Cast (including the number of votes Cast) at the
meeting of P&O Princess shareholders in relation to each such
Equivalent Resolution for a Joint Electorate Action; and
(b) its calculation of the P&O Princess Specified Numbers applicable to
the Carnival Special Voting Share for each Equivalent Resolution for a
Joint Electorate Action and of the way in which DLC SVC is required to
vote the P&O Princess Specified Numbers attaching to the Carnival
Special Voting
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Share in relation to each such Equivalent Resolution at the Parallel
Shareholder Meeting of Carnival in accordance with this Deed and the
Carnival Constitution.
3. NOTIFICATION OF OUTCOME ON VOTE ON CLASS RIGHTS ACTIONS
3.1 Notification by Carnival
Carnival agrees with P&O Princess and the P&O Princess Trustee that, in
relation to each meeting of Carnival shareholders at which any resolution
or resolutions relating to a Class Rights Action is to be considered,
Carnival shall, as soon as possible after the Carnival shareholders (other
than DLC SVC) entitled to vote on any such resolution Cast those votes at
such shareholder meeting, deliver to the P&O Princess Trustee and P&O
Princess in writing and in accordance with clause 17.5 a certificate of a
duly authorised officer of Carnival setting forth (a) how the votes were
Cast (including the number of votes Cast) at the meeting of Carnival
shareholders in relation to each such Equivalent Resolution; (b) whether or
not each such Equivalent Resolution or resolutions was approved by the
requisite majority pursuant to the Carnival Constitution and/or Applicable
Regulations, and (c) the information required by Section 4.4(a) hereof, if
any.
3.2 Notification by P&O Princess
P&O Princess agrees with Carnival and DLC SVC that, in relation to each
meeting of P&O Princess shareholders at which any resolution or resolutions
relating to a Class Rights Action is to be considered, P&O Princess shall,
as soon as possible after the P&O Princess shareholders (other than the P&O
Princess Trustee) entitled to vote on any such resolution Cast those votes
at such shareholder meeting, deliver to DLC SVC and Carnival in writing and
in accordance with clause 17.5 a certificate of a duly authorised officer
of P&O Princess setting forth (a) how the votes were Cast (including the
number of votes Cast) at the meeting of P&O Princess shareholders in
relation to each such Equivalent Resolution; (b) whether or not the
Equivalent Resolution or resolutions were approved by the requisite
majority pursuant to the P&O Princess Articles and/or Applicable
Regulations, and (c) the information required by Section 4.4(b) hereof, if
any.
4. ATTENDANCE AT MEETINGS AND VOTING
4.1 Attendance at meetings
(a) DLC SVC agrees with P&O Princess that, at every meeting of Carnival
shareholders at which any resolution relating to a Joint Electorate
Action or a Class Rights Action is to be considered, DLC SVC shall be
present by its duly appointed corporate representative or by proxy or
proxies. Carnival agrees to notify DLC SVC in writing and in
accordance with clause 17.5 at the time it sends notice to its
shareholders of a shareholder meeting whether any resolution to be
proposed at such meeting is a Joint Electorate Action or a Class
Rights Action and DLC SVC shall be entitled to rely on any such notice
for the purposes of this Deed. Carnival also agrees to notify DLC SVC
in advance and in writing in accordance with clause 17.5 of the time
and place at which an adjourned or postponed meeting will be held and
whether any resolution to be proposed at such meeting is a Joint
Electorate Action or a
9
Class Rights Action and DLC SVC shall be entitled to rely on any such
notice for the purpose of this Deed.
(b) The P&O Princess Trustee agrees with Carnival that, at every meeting
of P&O Princess at which any resolution relating to a Joint Electorate
Action or a Class Rights Action is to be considered, the P&O Princess
Trustee shall be present by its duly appointed corporate
representative or by proxy or proxies. P&O Princess agrees to notify
the P&O Princess Trustee in writing and in accordance with clause 17.5
at the time it sends notice to its shareholders of a shareholder
meeting whether any resolution to be proposed at such meeting is a
Joint Electorate Action or a Class Rights Action and the P&O Princess
Trustee shall be entitled to rely on any such notice for the purposes
of this Deed. P&O Princess also agrees to notify the P&O Princess
Trustee in advance and in writing in accordance with clause 17.5 of
the time and place at which an adjourned or postponed meeting will be
held and whether any resolution to be proposed at such meeting is a
Joint Electorate Action or a Class Rights Action and DLC SVC shall be
entitled to rely on any such notice for the purpose of this Deed.
4.2 Vote in accordance with constitution
(a) DLC SVC agrees with Carnival and P&O Princess that it shall vote the
Carnival Special Voting Share in accordance with the requirements of
the Carnival Constitution and this Deed.
(b) The P&O Princess Trustee agrees with Carnival and P&O Princess that it
shall vote the P&O Princess Special Voting Share in accordance with
the requirements of the P&O Princess Articles and this Deed.
4.3 Vote on Joint Electorate Action
(a) DLC SVC agrees with Carnival and P&O Princess that on any resolution
that relates to a Joint Electorate Action it will exercise the voting
rights attached to the Carnival Special Voting Share in accordance
with the certificate delivered under clause 2.2(b).
(b) The P&O Princess Trustee agrees with Carnival and P&O Princess that on
any resolution that relates to a Joint Electorate Action it will
exercise the voting rights attached to the P&O Princess Special Voting
Share in accordance with the certificate delivered under clause
2.1(b).
4.4 Vote on Class Rights Action
(a) DLC SVC agrees with Carnival and P&O Princess that where it has been
notified by P&O Princess in accordance with clause 3.2 that a Class
Rights Action has (pursuant to the P&O Princess Articles and/or
Applicable Regulations) not been approved by the requisite majority of
votes at a P&O Princess meeting of shareholders then it will exercise
the voting rights attached to the Carnival Special Voting Share in
accordance with the certificate delivered under clause 3.2, which
certificate shall state the number of votes attaching to the Carnival
Special Voting Share as set forth below:
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(i) if the resolution needs to be passed by a Majority Resolution it
shall vote the Carnival Special Voting Share 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 that Majority Resolution if the total votes capable of
being cast by the outstanding Carnival Common Stock and other
class of shares of Carnival that are entitled to vote pursuant to
Applicable Regulations and/or the Carnival Constitution
(excluding the Carnival Special Voting Share) were cast in favour
of the resolution at the Carnival Parallel Shareholder Meeting;
and
(ii) if the resolution needs to be passed by a Supermajority
Resolution it shall vote the Carnival Special Voting Share to
cast such number of votes representing the largest whole
percentage that is less than the percentage of the number of
votes as would be necessary to defeat a Supermajority Resolution
if the total votes capable of being cast by the outstanding
Carnival Common Stock and other class of shares of Carnival that
are entitled to vote pursuant to Applicable Regulations and/or
the Carnival Constitution (excluding the Carnival Special Voting
Share) were cast in favour of the resolution at the Carnival
Parallel Shareholder Meeting.
By way of further explanation, expressed as a formula, the Carnival
Special Voting Share shall be entitled to cast the following number of
votes:
[ One percentage point less than the ]
minimum percent needed to defeat
the resolution Number of votes entitled
-------------------------------------- X to be cast (excluding the
100 percent - Minimum percent Carnival Special Voting
needed to defeat Share)
[ the resolution ]
Accordingly, for a Majority Resolution, 50 percent is the minimum
percent needed to defeat the resolution, and the figure in brackets
would be 98 percent. In the event that a Supermajority Resolution is
required to carry in excess of 75 percent of the votes cast, then 25
percent would be the minimum percent needed to defeat the resolution,
and the figure in brackets would be 32 percent.
(b) The P&O Princess Trustee agrees with Carnival and P&O Princess that
where it has been notified by Carnival in accordance with clause 3.1
that a Class Rights Action has (pursuant to the Carnival Constitution
and/or Applicable Regulations) not been approved by the requisite
majority of votes at a Carnival meeting of shareholders then it will
exercise the voting rights attached to the P&O Princess Special Voting
Share in accordance with the certificate delivered under clause 3.1,
which certificate shall state the number of votes attaching to the P&O
Princess Special Voting Share as set forth below:
(i) if the resolution needs to be passed by an ordinary resolution,
it shall vote the P&O Princess Special Voting Share 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
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outstanding 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 Articles
(excluding the P&O Princess Special Voting Share) were cast in
favour of the resolution at the P&O Princess Parallel Shareholder
Meeting; and
(ii) if the resolution needs to be passed by a Special Resolution, it
shall vote the P&O Princess Special Voting Share to cast such
number of votes representing the largest whole percentage that is
less than the percentage of the number of votes as would be
necessary to defeat a Special Resolution if the total votes
capable of being cast by the outstanding 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 Articles (excluding the P&O Princess Special Voting
Share) were cast in favour of the resolution at the P&O Princess
Parallel Shareholder Meeting.
By way of further explanation, expressed as a formula, the P&O
Princess Special Voting Share shall be entitled to cast the following
number of votes:
[ One percentage point less than the ]
minimum percent needed to defeat
the resolution Number of votes entitled to be
-------------------------------------- X cast (excluding the P&O
100 percent - Minimum percent Princess Special Voting Share)
needed to defeat
[ the resolution ]
Accordingly, for an ordinary resolution, 50 percent is the minimum
percent needed to defeat the resolution, and the figure in brackets
would be 98 percent. In the event that a Special Resolution is
required to carry 75 percent of the votes cast, then 25.01 (rounded
down to the nearest hundredth) percent would be the minimum percent
needed to defeat the resolution, and the figure in brackets would be
approximately 32 percent.
4.5 Amendments to resolutions
(a) DLC SVC is entitled to rely on a certificate from a duly authorised
officer of Carnival and a duly authorised officer of P&O Princess that
for all purposes of this Deed an amendment to a resolution to approve
a Joint Electorate Action is made in accordance with the Carnival
Constitution and Applicable Regulations and that the resolution as
amended is the Equivalent Resolution to the resolution considered at
the Parallel Shareholder Meeting of P&O Princess. Such certificate
shall be given in accordance with clause 17.5.
(b) The P&O Princess Trustee is entitled to rely on a certificate from a
duly authorised officer of P&O Princess and a duly authorised officer
of Carnival that for all purposes of this Deed an amendment to a
resolution to approve a Joint Electorate Action is made in accordance
with the P&O Princess Articles and Applicable Regulations and that the
resolution as amended is the Equivalent Resolution to the resolution
considered at the Parallel Shareholder Meeting of Carnival. Such
certificate shall be given in accordance with clause 17.5.
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4.6 No discretion as to voting
Each of DLC SVC and the P&O Princess Trustee agrees with Carnival and P&O
Princess that it has no discretion as to how to vote the P&O Princess
Special Voting Share and/or the Carnival Special Voting Share (as
applicable) and that it shall only vote those shares in accordance with
this Deed and in accordance with the P&O Princess Articles and/or the
Carnival Constitution (as applicable).
4.7 Procedural and technical resolutions
DLC SVC and the P&O Princess Trustee will be entitled to rely on a
certificate given to it in writing (in accordance with clause 17.5) by the
Chairman of the relevant shareholder meeting that a resolution is a
procedural or technical resolution (in accordance with the P&O Princess
Articles or the Carnival Constitution (as applicable)) and that the
Carnival Special Voting Share or the P&O Princess Special Voting Share (as
applicable) will not have any votes in respect of such resolution. If a
resolution is proposed for the first time during a meeting of shareholders
of either P&O Princess or Carnival (whereby "proposed for the first time"
means it was not set out in the notice of the relevant shareholders'
meeting) and is determined by the Chairman of the relevant shareholder
meeting (in accordance with the P&O Princess Articles or the Carnival
Constitution (as applicable)) not to be a resolution of a procedural or
technical nature then, if such resolution is to be voted on by
shareholders, it will be voted on in the same way as any other Joint
Electorate Action or Class Rights Action (as applicable) (and, for the
avoidance of doubt, proper notice of such resolution will first be given to
shareholders, including to DLC SVC and the P&O Princess Trustee).
5. DEALINGS
5.1 P&O Princess SVT
Subject to the Voting Trust Deed, the Pairing Agreement and the P&O
Princess Articles, the P&O Princess Trustee agrees with Carnival and P&O
Princess that it shall not Deal with the P&O Princess Special Voting Share
or any interest in (or right attaching to) such share. Any Dealing by the
P&O Princess Trustee in violation of this clause 5.1 shall be null and
void.
5.2 DLC SVC
Subject to clauses 16.2 and 16.3, DLC SVC agrees with P&O Princess and
Carnival that:
(a) it shall not Deal with the Carnival Special Voting Share or any
interest in (or right attaching to) such share without the prior
written consent of both Carnival and P&O Princess, such consent to be
in the absolute discretion of Carnival and P&O Princess; and
(b) no transfer of the Carnival Special Voting Share shall be effective
unless and until the transferee of such share, as consented to by
Carnival and P&O Princess, has agreed to be bound by this Deed or
entered into a deed on equivalent terms. Any Dealing by the DLC SVC in
violation of this clause 5.2 shall be null and void.
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6. OBLIGATIONS SUBJECT TO APPLICABLE REGULATIONS
(a) The obligations of the parties under this Deed will be subject to any
Applicable Regulations. The parties will use their best endeavours to
remedy a situation where Applicable Regulations prevent any party from
performing its obligations hereunder.
(b) Carnival and P&O Princess agree to cause the issuance of the P&O
Princess Special Voting Share and trust shares of beneficial interest
in the P&O Princess SVT to be registered under the Securities Act of
1933, as amended. To the extent required by the Exchange Act, P&O
Princess agrees to cause the P&O Princess Special Voting Share and
trust shares of beneficial interest in the P&O Princess SVT to be
registered and to maintain effective such registration under the
Exchange Act. So long as the Carnival Common Stock is listed on the
NYSE, P&O Princess agrees to use diligence and reasonable efforts to
effect the listing of the P&O Princess Special Voting Share on the
NYSE, and Carnival agrees to use diligence and reasonable efforts to
cause the trust shares of beneficial interest in the P&O Princess SVT
to be paired with Carnival Common Stock for purposes of trading of the
paired security on the NYSE, in accordance with the Pairing Agreement.
7. DEFAULT BY CARNIVAL OR P&O PRINCESS
If at any time Carnival or P&O Princess defaults in the performance or
observance of any obligation or other provision binding on it under or
pursuant to this Deed and owed to DLC SVC or the P&O Princess Trustee,
respectively, DLC SVC or the P&O Princess Trustee, as the case may be, may
take such actions or institute such proceedings as it may reasonably
consider to be appropriate in relation to any such default and shall not be
obliged to give notice of its intention to do so.
8. SUPPLY OF INFORMATION; CONFIDENTIALITY
8.1 Supply of information
(a) So long as DLC SVC is registered as the holder of the Carnival Special
Voting Share, Carnival and P&O Princess shall each give to DLC SVC or
any person approved by Carnival or P&O Princess and appointed in
writing by DLC SVC such information as DLC SVC 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 DLC SVC under this Deed. All information
provided by Carnival and P&O Princess under this clause 8.1(a) shall
be in writing and given in accordance with clause 17.5 and contained
in a certificate of a duly authorised officer of Carnival or a
certificate of a duly authorised officer of P&O Princess.
(b) So long as the P&O Princess Trustee is registered as the holder of the
P&O Princess Special Voting Share, Carnival and P&O Princess shall
each give to the P&O Princess Trustee or any person approved by
Carnival or P&O Princess and appointed in writing by the P&O Princess
Trustee such information as the P&O Princess Trustee or such appointed
person shall reasonably require (other than material, non-public
information) for the
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purpose of the discharge of the powers, duties and discretions vested
in the P&O Princess Trustee under this Deed. All information provided
by Carnival and P&O Princess under this clause 8.1(b) shall be in
writing and given in accordance with clause 17.5 and contained in a
certificate of a duly authorised officer of P&O Princess or a duly
authorised officer of Carnival.
8.2 Confidentiality
Each of DLC SVC and the P&O Princess Trustee shall not, and will use its
respective best endeavours to ensure that any person appointed in writing
by it in accordance with clause 8.1 shall not divulge any information given
to it pursuant to clauses 2, 3, 4.5 and 8.1 which is confidential or
proprietary to the party which gave it the information, in each case,
unless prior written approval is given by the party which gave the
information or unless required by Applicable Regulations. If disclosure of
any such information is required by Applicable Regulations, DLC SVC and/or
the P&O Princess Trustee (as relevant) will, to the extent practicable,
first consult with P&O Princess and Carnival as to the form, content and
timing of such disclosure.
9. REMUNERATION AND EXPENSES OF DLC SVC AND P&o PRINCESS TRUSTEE
9.1 Fees and expenses
Carnival shall pay or ensure that payment is made to the P&O Princess
Trustee or as it shall otherwise direct, and P&O Princess shall pay or
ensure that payment is made to DLC SVC or as it shall otherwise direct,
such fees and expenses as may be agreed from time to time between (i)
Carnival and the P&O Princess Trustee and (ii) DLC SVC and P&O Princess,
for the performance by the P&O Princess Trustee and DLC SVC (respectively)
of its obligations pursuant to this Deed.
9.2 Period of remuneration
The remuneration referred to in clause 9.1 shall continue to be payable:
(a) by Carnival until the later of: (i) the P&O Princess Trustee ceasing
to be registered as the holder of the P&O Princess Special Voting
Share and (ii) the termination of this Deed in accordance with clause
16; and
(b) by P&O Princess until the later of (i) DLC SVC ceasing to be
registered as the holder of the Carnival Special Voting Share and (ii)
the termination of this Deed in accordance with clause 16.
9.3 Exceptional duties
In the event either DLC SVC or the P&O Princess Trustee finds it is
necessary or is otherwise required to undertake any duties which would not
have been reasonably contemplated in relation to the performance of its
obligations and the exercise of the powers, authorities and discretions
vested in it under this Deed, Carnival shall pay to P&O Princess Trustee or
as it shall otherwise direct and P&O Princess shall pay to DLC SVC or as it
shall otherwise direct such special remuneration in addition to that
referred to in clause 9.1 as shall be mutually agreed.
15
9.4 VAT and similar taxes
The remuneration referred to in clause 9.1 and any additional special
remuneration payable under clause 9.3 shall be exclusive of any value added
tax, sales tax, use tax or any similar transaction tax which shall be added
at the rate applicable in the circumstances and paid by P&O Princess and/or
Carnival, as the case may be.
9.5 Expenses
Carnival and P&O Princess shall pay all travelling and other costs, charges
and expenses including legal costs and other professional fees (including,
where applicable, value added tax or any similar tax) which each of the P&O
Princess Trustee and DLC SVC may properly incur in relation to the
performance of its obligations and the exercise of the powers, authorities
and discretions vested in it under this Deed and/or any costs and expenses
incurred in connection with the valid termination of this Deed and the
resulting transfer in accordance with clause 16.2 of the Carnival Special
Voting Share or with the transfer of the Carnival Special Voting Share
under clause 16.3.
10. POwER OF DLC SVC AND P&O PRINCESS TRUSTEE
10.1 Act on advice
Each of DLC SVC and the P&O Princess Trustee may in the proper performance
of its obligations and the exercise of the powers, authorities and
discretions vested in it under this Deed act on the opinion or advice of or
information obtained from any lawyer, banker, valuer, accountant, transfer
agent, the share registrar or inspector of election at such time of
Carnival or P&O Princess or other expert, whether obtained by Carnival or
P&O Princess or by DLC SVC or the P&O Princess Trustee or otherwise, and in
such case, provided that the DLC SVC or the P&O Princess Trustee (as the
case may be) shall have acted reasonably in its choice of any such person,
the DLC SVC and/or the P&O Princess Trustee (as the case may be) 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. DLC SVC and the P&O Princess 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 communication reasonably
appearing on its face to be authentic even though it contains an error or
is not authentic.
10.2 Powers of DLC SVC and the P&O Princess Trustee
Each of DLC SVC and the P&O Princess Trustee shall have all requisite
powers, authorities and discretions as shall be necessary or appropriate to
enable it to take all and any such actions as are contemplated by the
provisions of this Deed and the relevant provisions of the Carnival
Constitution and the P&O Princess Articles.
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10.3 Act on resolution
DLC SVC and the P&O Princess Trustee shall not be responsible,
respectively, for having acted upon or having implemented or given effect
to any resolution purporting to have been passed:
(a) as a resolution of Carnival at any meeting of Carnival shareholders;
or
(b) as a resolution of P&O Princess at any meeting of P&O Princess
shareholders,
minutes for which have been made and signed (or in respect of which it has
been informed in accordance with this Deed by any director of Carnival or
P&O Princess or the secretary of Carnival or P&O Princess or other duly
authorised person that the resolution has been passed) even though it may
subsequently be found that there was some defect in the constitution of the
meeting or the passing of the resolution or that for any reason the
resolution was not valid or binding upon the holders of the relevant shares
or (as the case may be) was not in accordance with this Deed.
10.4 Validity of notices
DLC SVC and the P&O Princess Trustee shall be at liberty to accept a
certificate or notice given under clause 17.5 signed or purporting to be
signed by any director of Carnival or P&O Princess or the secretary of
Carnival or P&O Princess or any other duly authorised 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 DLC SVC the P&O
Princess Trustee may in the performance of any of its obligations and the
exercise of any of the powers, authorities and discretions under this Deed
(including a notification, report, statement or certificate referred to in
clauses 2.1, 2.2, 3.1, 3.2, 4.1, 4.3, 4.4, 4.5 or 4.7) or a statement to
the effect that in the opinion of the persons so certifying any particular
dealing, transaction, step or thing is expedient. DLC SVC and the P&O
Princess 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 nor to be responsible for any losses, liabilities,
costs, damages, actions, demands or expenses or for any breach of any of
the provisions of this Deed that may be occasioned by accepting or acting
or relying on any such certificate, report, statement or notice.
10.5 Assumption of no breach
DLC SVC and the P&O Princess Trustee shall not be bound to take any steps
to ascertain whether any breach of any of the provisions of this Deed has
occurred and, until it has actual knowledge to the contrary, DLC SVC and
the P&O Princess Trustee shall be entitled to assume that no such breach
has occurred.
10.6 Discretions
Save as otherwise expressly provided in this Deed (including for the
avoidance of doubt in clauses 4, 5 and 16), each of DLC SVC and the P&O
Princess Trustee shall, as regards all powers, authorities and discretions
vested in it under this Deed, have absolute and uncontrolled discretion as
to the exercise or non-exercise thereof and, provided it shall have acted
honestly and reasonably, it shall be in no way responsible for any losses,
costs, damages, expenses, liabilities, actions, demands or inconveniences
that may result from the exercise or non-exercise thereof.
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11. INDEMNITIES
11.1 Indemnity by P&O Princess
Subject to clause 11.2, P&O Princess agrees with DLC SVC to indemnify it,
for itself and as trustee on behalf of its directors, officers, employees,
controlling persons and every attorney, manager, agent, delegate or other
person appointed by it under this Deed (each an "Indemnified Party")
against all liabilities and expenses properly incurred by it or such
persons in the performance or purported performance of its obligations
under this Deed and of any powers, authorities or discretions vested in it
or such persons pursuant to this Deed and against all actions, proceedings,
costs, claims, damages, expenses and demands in respect of any matter or
thing done or omitted in any way relating to this Deed, including the
institution by DLC SVC of any proceedings pursuant to clause 7 in respect
of any default by Carnival or P&O Princess.
11.2 Limitation to indemnities
Nothing contained in this Deed shall, in any circumstance in which DLC SVC
or, as the case may be, any other Indemnified Party has been guilty of
fraud or negligence in the performance of any of its duties under this Deed
or has willfully defaulted in its obligations, or has willfully breached
its obligations, under this Deed, exempt such Indemnified Party or Parties
from, or indemnify such Indemnified Party or Parties against, any liability
for breach of contract or any liability which by virtue of any rule of law
would otherwise attach to such Indemnified Party or Parties in respect of
any fraud, negligence or willful default of which such Indemnified Party or
Parties may be guilty in relation to their duties under this Deed.
12. ACTIVITIES
(a) For as long as DLC SVC shall be registered as the holder of the
Carnival Special Voting Share the DLC SVC Owner agrees that the only
activities carried out by DLC SVC shall be such activities as are
necessary or expedient in order for DLC SVC to perform its obligations
and exercise its rights, powers, authorities and discretions pursuant
to this Deed and the Carnival Constitution, as the case may be, and to
enforce the performance by each of Carnival and P&O Princess of its
obligations under them (unless both Carnival and P&O Princess
otherwise expressly agree in writing).
(b) For as long as the P&O Princess Trustee shall be registered as the
holder of the P&O Princess Special Voting Share the P&O Princess
Trustee agrees that the only activities carried out by the P&O
Princess Trustee, in its capacity as trustee, shall be such activities
as are necessary or expedient in order for the P&O Princess Trustee to
perform its obligations and exercise its rights, powers, authorities
and discretions pursuant to this Deed, the Voting Trust Deed, the P&O
Princess Articles and the Pairing Agreement, as the case may be, and
to enforce the performance by each of Carnival and P&O Princess of its
obligations under them (unless both Carnival and P&O Princess
otherwise expressly agree in writing).
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13. GOVERNANCE MATTERS
13.1 Members of DLC SVC
For as long as DLC SVC is registered as the holder of the Carnival
Special Voting Share, the DLC SVC Owner, Carnival and P&O Princess agree
that the DLC SVC will have only one member, being the DLC SVC Owner, and
that DLC SVC shall maintain its status as a limited liability company
under the laws of England and Wales.
13.2 Directors of DLC SVC
For as long as DLC SVC is registered as the holder of the Carnival
Special Voting Share, the board of directors of the DLC SVC shall
comprise such persons as are appointed or approved by the DLC SVC Owner.
The DLC SVC Owner shall not appoint any person as a director of the DLC
SVC who is an employee or director of either the Carnival Group or the
P&O Princess Group.
13.3 The P&O Princess Trustee
The trustee of P&O Princess SVT shall initially be the P&O Princess
Trustee, in accordance with the Voting Trust Deed. Carnival agrees with
P&O Princess that it shall not replace the P&O Princess Trustee pursuant
to Section 7.06 of the Voting Trust Deed without the prior written
consent of P&O Princess. If the P&O Princess Trustee is replaced at any
time in accordance with Section 7.06 of the Voting Trust Deed, the P&O
Princess Trustee shall novate its rights and obligations under this Deed
to the successor trustee appointed thereunder, and all references to the
P&O Princess Trustee in this Deed shall be deemed to be references to
such successor trustee.
14. AMENDMENTS TO THIS DEED
DLC SVC, the P&O Princess Trustee and the DLC SVC Owner shall at any time
concur with P&O Princess and Carnival in making any modifications to the
provisions of this Deed which:
(a) are formal or technical amendments and which Carnival and P&O
Princess notify are not materially prejudicial to the interests of
either Carnival or P&O Princess shareholders;
(b) are necessary to correct manifest errors in this Deed or
inconsistencies between provisions of this Deed or between
provisions of this Deed and the Equalization Agreement, Voting Trust
Deed or Pairing Agreement; or
(c) have previously been approved as a Class Rights Action,
provided in each case that if such modification affects (including
increasing or reducing respectively) the obligations or rights of DLC
SVC, the P&O Princess Trustee and/or the DLC SVC Owner under this Deed or
any provision affecting the performance by DLC SVC, the P&O Princess
Trustee and/or the DLC SVC Owner of its obligations under this Deed, such
modification shall require the consent of DLC SVC, the P&O Princess
Trustee and/or the DLC SVC Owner, such consent not to unreasonably
withheld or delayed.
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15. DAMAGES NOT ADEQUATE REMEDY
Each of DLC SVC, Carnival, P&O Princess, the P&O Princess Trustee and the
DLC SVC Owner hereby acknowledge and agree with each other that damages
would not be an adequate remedy for the breach of any provision of this
Deed and, accordingly, each shall be entitled to the remedies of
injunction, specific performance and other equitable remedies for any
such threatened or actual breach.
16. TERMINATION
16.1 Automatic termination
This Deed shall automatically terminate:
(a) upon termination of the Equalization Agreement in accordance with
its terms; or
(b) if a resolution to terminate this Deed is approved by the
shareholders of Carnival and P&O Princess as a Class Rights Action,
provided that clauses 8.2, 9, 11 and 16 shall continue to bind the
parties for so long as may be necessary to give full effect to the rights
and obligations arising under them and provided that clauses 8.1 and 10.4
shall continue to bind the parties for so long as DLC SVC is registered
as the holder of the Carnival Special Voting Share or the P&O Princess
Trustee is registered as the holder of the P&O Princess Special Voting
Share
16.2 Transfer of Carnival Special Voting Share
Upon termination of this Deed in accordance with clause 16.1 and upon
receipt of (Pounds)1 from Carnival, DLC SVC shall promptly, upon being
requested to do so, transfer the Carnival Special Voting Share to such
person as the Board of Carnival directs it to in writing. Pending
notification, DLC SVC shall have no obligation whatsoever in respect of
the Carnival Special Voting Share or under this Deed except that DLC SVC
must not Deal with the Carnival Special Voting Share or any interest in,
or right attaching to, that share other than in accordance with such
notification, which is to be given within 6 months after the date of
termination of this Deed and must be given in writing in accordance with
clause 17.5.
16.3 Replacement of the DLC SVC Owner
If given notice under clause 17.5 to do so by a duly authorised officer
of P&O Princess and by a duly authorised officer of Carnival, DLC SVC
shall, within two months after receipt of such notice transfer the
Carnival Special Voting Share to such person as notified to in the
aforementioned notice (the "Novated Person"). DLC SVC agrees to novate
its rights and obligations under this Deed to the Novated Person, and the
DLC SVC Owner agrees to novate its rights and obligations under this Deed
to such person as notified in the aforementioned notice ("New SVC
Owner"). The provisions of this clause 16.3 shall apply, mutatis
mutandis, to any subsequent notification by a duly authorised officer of
P&O Princess and by a duly authorised officer of Carnival to replace the
Novated Person and the New SVC Owner. Following any such transfer,
references in the Deed to DLC SVC shall be to the Novated Person and
references in this Deed to the DLC SVC Owner shall be to the New SVC
Owner.
20
16.4 Continuation of Indemnity
For the avoidance of doubt, and notwithstanding any other provision of
this Deed, any replacement of DLC SVC shall not release or prejudice in
any way any of DLC SVC's rights to be indemnified by P&O Princess which
shall continue in full force and effect and continue to be enforceable by
the DLC SVC notwithstanding such replacement.
17. GENERAL
17.1 No assignment
This Deed shall not be assignable by operation of law or otherwise, and
any purported assignment (whether in whole or in part) in violation of
this provision shall be void.
17.2 No partnership or agency
This Deed is not intended to alter the status of the parties as separate,
independent entities, to create a partnership, joint venture or agency
relationship between the parties or their respective Subsidiaries or
shareholders, or to give any party (or its respective Subsidiaries or
shareholders) any legal or beneficial ownership interest in the assets or
income of the other parties, and they shall not be construed as having
that effect.
17.3 Intent of the Parties
The parties intend that the P&O Princess SVT shall at all times 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, as defined in the Voting Trust
Deed, 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.
Notwithstanding any other provision herein, the provisions of this Deed
shall be interpreted to further this intention and powers granted as well
as obligations undertaken pursuant to this Deed shall be construed so as
to further such intent. No provision of this Deed shall be of any force
or effect if such provision would result in the P&O Princess SVT being
treated in a manner inconsistent with the intention of the parties as set
forth in this clause 17.3.
17.4 Regulatory
All parties to this Deed will co-operate with each other from time to
time to ensure that all information necessary or desirable for the making
of (or responding to any requests for further information with respect
to) any notifications or filings made in respect of this Deed, or the
transactions contemplated by this Deed, is supplied to the party dealing
with such notification and filings and that they are properly, accurately
and promptly made.
17.5 Notices
Any notice, certificate, report or statement given under this Deed:
(a) must be in writing addressed to the intended recipient at the
address shown below:
21
Carnival Corporation
3655 N.W. 87/th/ Avenue
Miami, Florida 33178-2428
Attention: Chairman and Chief Executive Officer
Fax: (305) 599-2600
with copies to
Carnival Corporation
3655 N.W. 87/th/ Avenue
Miami, Florida 33178-2428
Attention: General Counsel
Fax: (305) 599-2600
DLC SVC Limited
Fifth Floor, 100 Wood Street
London EC2V 7EX
United Kingdom
Attention: Company Secretarial Dept. (IKB/ST)
Facsimile: +44 (0) 20 7696 5243/7606 0643
P&O Princess Cruises plc
Carnival House
5 Gainsford House
London SE1 2NE
UK
Attention: Chief Executive Officer
Fax: (+44) (0) 20 7378 4631
with copies to
P&O Princess Cruises plc
Carnival House
5 Gainsford House
London SE1 2NE
UK
Attention: General Counsel
Fax: (+44) (0) 20 7378 4631
22
The Law Debenture Trust
Corporation (Cayman) Limited
c/o Close Brothers (Cayman) Limited
PO Box 1034 GT
Harbour Place
4/th/ Floor, 103 South Church Street
Grand Cayman, Cayman Islands
Attention: Edel Gannon, Manager - Fund Services and Client
Accounting
Fax: +345 949 8499
The Law Debenture Trust
Corporation p.l.c.
Fifth Floor, 100 Wood Street
London EC2V 7EX
United Kingdom
Attention: Company Secretarial Dept. (IKB/ST)
Facsimile: +44 (0) 20 7696 5243/7606 0643
or to such other persons or addresses as may be designated in
writing by any party pursuant to this clause 17.5;
(b) must be signed by a person duly authorised by the sender; and
(c) shall be in writing and shall be deemed given (i) when sent if sent
by facsimile and promptly confirmed by telephone confirmation
thereof; or (ii) when delivered, if delivered personally to the
intended recipient or sent by overnight delivery via a national
courier service, and in each case, addressed to such person or
persons in accordance with this clause 17.5.
17.6 Severability
If any provision of this Deed is held to be invalid or unenforceable,
then such provision shall (so far as it is invalid or unenforceable) be
given no effect and shall be deemed not to be included in this Deed but
without invalidating any of the remaining provisions of this Deed. The
parties shall then use all reasonable endeavours to replace the invalid
or unenforceable provisions by a valid and enforceable substitute
provision the effect of which is as close as possible to the intended
effect of the invalid or unenforceable provision.
17.7 Waivers
(a) Waiver of any right arising from a breach of this Deed or of any
right, power, authority, discretion or remedy arising upon default
under this Deed must be in writing and signed by the party granting
the waiver.
(b) A failure or delay in exercise, or partial exercise, of:
(i) a right arising from a breach of this Deed; or
(ii) a right, power, authority, discretion or remedy created or
arising upon default under this Deed,
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does not result in a waiver of that right, power, authority,
discretion or remedy.
(c) A party is not entitled to rely on a delay in the exercise or
non-exercise of a right, power, authority, discretion or remedy
arising from a breach of this Deed or on a default under this Deed
as constituting a waiver of that right, power, authority, discretion
or remedy.
(d) A party may not rely on any conduct of another party as a defence to
exercise of a right, power, authority, discretion or remedy by that
other party.
(e) This clause may not itself be waived except by writing.
(f) No waiver by a party of a failure or failures by the other party to
perform any provision of this Deed shall operate or be construed as
a waiver in respect of any other or further failure whether of alike
or different character.
17.8 Variation
A variation of any term of this Deed must be in writing and signed by all
parties to this Deed.
17.9 Further assurances
Each party shall take all steps, execute all documents and do everything
reasonably required by the other parties to give effect to any of the
transactions contemplated by this Deed.
17.10 Counterparts
This Deed may be executed in any number of counterparts. All counterparts
taken together will be taken to constitute one and the same instrument.
17.11 Third Parties Rights
Except as expressly stated in this Deed, a person who is not a party to
this Deed shall have no right under the Contracts (Rights of Third
Parties) Act 2001 to enforce any of its terms.
17.12 Governing law and jurisdiction
(a) This Deed and the relationship between the parties shall be governed
by, and interpreted in accordance with, the laws of the Isle of Man.
(b) All of the parties agree that the courts of England are to have
exclusive jurisdiction to settle any disputes (including claims for
set-off and counterclaims) which may arise in connection with the
creation, validity, effect, interpretation or performance of, or the
legal relationships established by, this Deed or otherwise arising
in connection with this Deed, and for such purposes irrevocably
submit to the jurisdiction of the English courts.
(c) The parties irrevocably waive any objections to the jurisdiction of
any court referred to in this clause 17.12.
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(d) The parties irrevocably consent to service of process or any
other documents in connection with proceedings in any court by
facsimile transmission, personal service, delivery at any address
specified in this Deed or any other usual address, mail or in any
other manner permitted by English law, the law of the place of
service or the law of the jurisdiction where proceedings are
instituted.
DULY delivered as a DEED on the date inserted above
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EXECUTED as a DEED by )
CARNIVAL CORPORATION )
by duly authorised officers )
________________________________________
Name: Howard S. Frank
Title: Vice-Chairman and Chief
Operating Officer
________________________________________
Name: Arnaldo Perez
Title: Vice-President, General Counsel
and Secretary
EXECUTED as a DEED by )
DLC SVC LIMITED )
acting by two Directors/a Director and )
Secretary )
________________________________________
Name:
Title:
EXECUTED as a DEED by )
P&O PRINCESS CRUISES PLC )
acting by two Directors/a Director and )
Secretary )
________________________________________
Name:
Title:
________________________________________
Name:
Title:
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The Common Seal of
THE LAW DEBENTURE TRUST
CORPORATION (CAYMAN) LIMITED,
as Trustee of the P&O Princess Special
Voting Trust was hereunto affixed in
the presence of
________________________________________
Name:
Title:
EXECUTED as a DEED by )
THE LAW DEBENTURE TRUST
CORPORATION P.L.C. )
acting by two Directors/a Director and )
Secretary )
________________________________________
Name:
Title:
27