EXHIBIT 16
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DATED 24 OCTOBER 2002
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ARISON DEED POLL
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ARISON DEED POLL
THIS DEED IS MADE BY WAY OF DEED POLL, dated as of 24 October 2002 by Xxxxx
Xxxxxx (XX. XXXXXX) in favour of P&O Princess.
Except as otherwise provided herein, capitalized terms that are used but not
otherwise defined herein shall have the meaning assigned to such terms in the
form of the Implementation Agreement (as defined below) attached as Exhibit B
hereto.
WHEREAS, Carnival Corporation, a corporation organized and existing under the
laws of the Republic of Panama (CARNIVAL), is willing to enter into an
Implementation Agreement (the IMPLEMENTATION AGREEMENT) with P&O Princess
Cruises plc, a company incorporated under the laws of England and Wales (P&O
PRINCESS), providing for, among other things, Carnival and P&O Princess
establishing a dual listed company structure for the purposes of conducting
their businesses together and treating their shareholders as owning an interest
in a combined enterprise;
WHEREAS, the Implementation Agreement contemplates the execution and delivery of
this Deed;
WHEREAS, JMD Delaware, Inc. and JMD Protector, Inc. (together with Xx. Xxxxxx
the CARNIVAL PARTIES) have each executed or will execute a deed on substantially
similar terms to this deed in respect of such number of shares of Carnival
Common Stock (as defined in Clause 2 hereof) set forth opposite such Carnival
Party's name under the applicable heading in Exhibit A hereto (such shares, in
aggregate, including all shares set forth in Exhibit A hereto, the CARNIVAL
PARTIES' SHARES);
WHEREAS, in order to induce P&O Princess to enter into the Implementation
Agreement and the transactions contemplated thereby, Xx. Xxxxxx wishes to agree
and undertake, during the term of this Deed, (i) to, or to cause the owner
thereof to, Vote (as defined in Clause 3 hereof) the Shares (as defined in
Clause 2 hereof) and any New Shares (as defined in Clause 8 hereof) over which
he has or shares Voting Power (as defined in Clause 2 hereof), so as to approve
and adopt the Implementation Agreement and the transactions contemplated
thereby, including the Carnival Amended Articles and (ii) not, together with the
other Carnival Parties, to permit the transfer or other disposition of shares in
excess of those permitted to be Disposed pursuant to Clause 7.1(a) hereof.
THIS DEED WITNESSES as follows:
1. EFFECT OF THIS DEED
The Deed, including Exhibit A, shall take effect as a deed poll for the
benefit of P&O Princess.
2. REPRESENTATIONS OF XX. XXXXXX
Xx. Xxxxxx represents and warrants to P&O Princess that, as of the date
hereof, (a) Xx. Xxxxxx has the sole or shared power to vote (the VOTING
POWER), and has the sole or shared power to prevent any sale, transfer
or other disposition (a DISPOSITION) during the term of this Deed of,
all of the shares of Common Stock, par value US$0.01 per share, of
Carnival (the CARNIVAL COMMON STOCK) set forth opposite Xx. Xxxxxx'x
name in Exhibit A hereto (in the aggregate, Xx. Xxxxxx'x SHARES) except
with respect to the power of Disposition over the Shares that may be
the subject of a Disposition permitted under Clause 7.1(a) hereof, (b)
Xx. Xxxxxx does not have the power to vote any shares of Carnival
Common Stock other than such Shares or any such shares issuable upon
the conversion, exercise or exchange of any other securities and other
than the 3,653,168 shares of Carnival Common Stock owned by TAMMS
Investment Company, L.P. over which Xx. Xxxxxx may be deemed to share
Voting Power with other Persons, (c) to the extent Xx. Xxxxxx shares
Voting Power of his Shares, such powers are shared solely with one of
JMD Delaware, Inc. or JMD Protector, Inc., (d) he has both sole Voting
Power and sole power over Disposition of a number of Shares equal to
the number of Shares indicated in Exhibit A except as provided in
clause 2(a) above, (e) other than filings under the Exchange Act and
the rules of applicable stock exchanges, no notices, reports or other
filings are required to be made by him with, nor are any consents,
registrations, approvals, permits or authorizations required to be
obtained by him from, any Governmental Entity or other Person, in
connection with the execution and delivery of this Deed by him, other
than any such matters the failure of which to make or obtain would not,
individually or in aggregate, impair his ability to Vote the Shares or
New Shares in accordance with the terms hereof, and (f) the execution,
delivery and performance of this Deed by him does not, and the
performance by him of the transactions contemplated hereby will not,
result in any termination of, or limitation on his Voting Power or
power over Disposition with respect to his Shares. This Deed has been
duly executed and delivered and constitutes the legal, valid and
binding obligation of Xx. Xxxxxx enforceable against Xx. Xxxxxx in
accordance with its terms, subject to the Bankruptcy and Equity
Exception.
3. UNDERTAKING TO VOTE
Xx. Xxxxxx agrees to Vote or to cause each relevant owner thereof to
Vote the Shares and any New Shares over which Xx. Xxxxxx has or shares
Voting Power (a) in favor of adoption and approval of the
Implementation Agreement and the Transactions (including, without
limitation, the Carnival Amended Articles) at every meeting of the
stockholders of Carnival at which such matters are considered and at
every adjournment or postponement thereof, (b) against any action or
agreement that would compete with, impede, interfere with or discourage
the Transactions or inhibit the timely consummation thereof, (c)
against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any
other obligation of Carnival under the Implementation Agreement and (d)
except for the Transactions and the Implementation Agreement, against
any merger, consolidation, business combination, dual listed company
transaction, reorganization, recapitalization, liquidation or sale or
transfer of any material assets of or involving Carnival or any of its
Significant Subsidiaries. For purposes of this Deed, VOTE shall include
voting in person or by proxy in favor of or against any action,
otherwise consenting or withholding consent in respect of any action or
taking other action in favor of or against any action. VOTING shall
have a correlative meaning.
4. NO VOTING TRUSTS
Xx. Xxxxxx agrees that he will not, nor will he permit any entity under
his CONTROL (as defined in Rule 12b-2 under the Exchange Act) to,
deposit any of the Shares or New Shares over which he has or shares
Voting Power in a Voting trust or subject any of such Shares or New
Shares to any arrangement with respect to the Voting of such
Shares or New Shares other than existing agreements or arrangements or
any agreements entered into with P&O Princess.
5. NO PROXY SOLICITATIONS
Xx. Xxxxxx agrees that he will not, nor will he permit any entity under
his Control, (a) to solicit proxies or become a PARTICIPANT in a
SOLICITATION (as such terms are defined in Regulation 14A under the
Exchange Act) in opposition to or competition with the consummation of
the Transactions or otherwise encourage or assist any party in taking
or planning any action which would compete with, impede, interfere with
or tend to discourage the Transactions or inhibit the timely
consummation of the Transactions in accordance with the terms of the
Implementation Agreement, (b) to directly or indirectly encourage,
initiate or cooperate in a stockholders' Vote or action by consent of
Carnival's stockholders in opposition to or in competition with the
consummation of the Transactions, or (c) to become a member of a GROUP
(as such term is used in Section 13(d) of the Exchange Act) with
respect to any Voting securities of Carnival for the purpose of
opposing or competing with the consummation of the Transactions.
6. NO SHOP
Xx. Xxxxxx agrees that neither he nor any entity under his Control nor
any of the officers or directors of any entity under his Control shall,
and that he shall use his reasonable best efforts to cause the
Affiliates that he Controls, and the officers, directors, employees,
investment bankers, attorneys, accountants, financial advisors, agents
or other representatives of, any entity under his Control
(collectively, REPRESENTATIVES) not to, directly or indirectly,
initiate, solicit, encourage or otherwise facilitate any inquiries or
the making of any proposal or offer with respect to an Acquisition
Proposal. Xx. Xxxxxx further agrees that neither he nor any entity
under his Control nor any of the respective officers or directors of
any entity under his Control shall, and that he shall and shall direct
and use his reasonable best efforts to cause his Representatives not
to, directly or indirectly, have any discussions with or provide any
confidential information or data to any Person relating to an
Acquisition Proposal or engage in any negotiations concerning an
Acquisition Proposal, or otherwise facilitate any effort or attempt to
make or implement an Acquisition Proposal.
7. TRANSFER AND ENCUMBRANCE
7.1 On or after the date hereof and during the term of this Deed, Xx.
Xxxxxx agrees not to and to cause each relevant owner thereof not to
(a) make any Disposition of his Shares and New Shares except for (i)
Dispositions of his Shares which are pledged under existing pledge
agreements and Disposed pursuant to a foreclosure or other similar
proceeding under such agreement and which, when aggregated with any
Dispositions of the other Carnival Parties' Shares which are pledged
under existing pledge agreements and Disposed pursuant to a foreclosure
or other similar proceeding under such agreement, do not exceed
twenty-three (23) million Shares and (ii) Dispositions of his Shares
which are not covered by the preceding Clause (i) and which, when
aggregated with any Dispositions of the other Carnival Parties' Shares
which are not covered by Clause (i) above, do not exceed seven (7)
million Shares; or (b) take any other action that would terminate or
limit his Voting Power or power
over Disposition (other than with respect to Shares subject to
Dispositions made pursuant to Clauses 7.1(a) or 7.2 hereof) with
respect to any Shares or New Shares over which he has or shares Voting
Power or power over Disposition (other than with respect to
Dispositions made pursuant to Clauses 7.1(a) or 7.2 hereof).
7.2 Notwithstanding Clause 7.1(a) above, Xx. Xxxxxx may make any
Disposition of Shares and New Shares to any Person who agrees in
writing to be bound by the terms and conditions of this Deed in the
same manner as him.
8. ADDITIONAL PURCHASES
Xx. Xxxxxx agrees that, on or after the date hereof and during the term
of this Deed, if he purchases or otherwise acquires Voting Power or
power over Disposition over any shares of capital stock of Carnival
(NEW SHARES), then the terms of this Deed shall apply to such New
Shares immediately upon Xx. Xxxxxx purchasing or acquiring such Voting
Power or power over Disposition.
9. TERMINATION
This Deed shall terminate upon the earliest to occur of:
(a) Carnival withdrawing the Carnival DLC Proposal (as defined in
Carnival's press release with respect to a "Pre-Conditional
Carnival DLC Proposal With Partial Share Offer" for P&O
Princess dated 25 October 2002 (the PRESS ANNOUNCEMENT)) as a
result of the preconditions to the Carnival DLC Proposal not
having been satisfied or waived by 10 January 2003;
(b) Carnival withdrawing the Carnival DLC Proposal on or prior to
10 January 2003 as a result of (i) a third party announcing a
firm intention (whether or not subject to a precondition) to
make an offer (including an offer to form a dual listed
company) for P&O Princess, which offer, in Carnival's
reasonable opinion, acting in good faith and after
consultation with its financial advisers, the nature of such
advice having been communicated to P&O Princess, is likely to
be more attractive to P&O Princess shareholders than the
Carnival DLC Proposal; (ii) the P&O Princess board having
recommended a competing offer to the Carnival DLC Proposal
(including an offer to form a dual listed company); or (iii)
the P&O Princess board having announced that it did not intend
to recommend the Carnival DLC Proposal;
(c) the Transactions being approved by the Carnival Requisite
Vote; and;
(d) the termination of the Implementation Agreement.
10. AMENDMENTS
Any provision of this Deed may be amended if, and only if, such
amendment is in writing and signed by Xx. Xxxxxx, and P&O Princess
agrees to such amendment before such amendment is made.
11. NOTICES
All notices, requests, claims, demands or other communications
hereunder shall be in writing and shall be deemed given when delivered
personally, upon receipt of a
transmission confirmation if sent by telecopy or like transmission and
on the next business day when sent by Federal Express, Express Mail or
other reputable overnight courier service at the following addresses
(or at such other address as shall be specified by like notice):
If to Xx. Xxxxxx, to:
c/o Carnival Corporation
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
With copies, which shall not constitute notice, to:
Carnival Corporation
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
and to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
and to:
P&O Princess Cruises plc
00 Xxx Xxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Attention: General Counsel
Facsimile: (44) 00-0000 0000
and to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxxxxx, Esq.
Facsimile: (000) 000 0000
or to such other Persons on addresses as may be designated in writing
to receive such notice as provided above.
12. FIDUCIARY DUTIES
Nothing contained in Clauses 5 or 6 of this Deed shall restrict Xx.
Xxxxxx, as a director of Carnival, from taking any action as a director
if he reasonably determines in good faith after consultation with legal
counsel that the failure to take such action would result in a breach
of his fiduciary duties to the stockholders of Carnival.
13. SPECIFIC PERFORMANCE
Xx. Xxxxxx agrees that if any of the provisions of this Deed are not
performed in accordance with their specific terms or are otherwise
breached, irreparable damage would occur, no adequate remedy at law
would exist and damages would be difficult to determine and that P&O
Princess shall be entitled to specific performance of the terms hereof
and immediate injunctive relief, without the necessity of proving the
inadequacy of money damages as a remedy in addition to any other remedy
at law or in equity.
14. GENERAL
14.1 SEVERABILITY
If any term, provision, covenant or restriction of this Deed is held by
a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Deed shall remain in full force and
effect and shall in no way be effected, impaired or invalidated so long
as the legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to Xx. Xxxxxx or any of the
beneficiaries hereunder. Upon such a determination, Xx. Xxxxxx shall in
good faith modify this Deed so as to effect the original intent of this
Deed as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
14.2 FURTHER ASSURANCES
Xx. Xxxxxx shall execute and deliver such further instruments and do
such further acts and things as may be required to carry out the intent
and purpose of this Deed.
14.3 NO ASSIGNMENT
Xx. Xxxxxx may not assign any of his obligations under this Deed, in
whole or part.
15. LAW AND JURISDICTION
15.1 This Deed shall be governed by and construed in accordance with the
laws of England, other than in respect of Clauses 12, 13, 14.1, 15.2
and 16 which shall be governed by and construed in accordance with the
laws of the State of New York without regard to the choice of law
provisions thereof that would indicate the applicability of the laws of
any other jurisdictions.
15.2 Any legal action or proceeding arising out of or in connection with
this Deed shall be brought exclusively in the Federal courts of the
United States of America located in the Borough of Manhattan, New York
State (or, if such jurisdiction is refused by such Federal courts, the
Supreme Court of the State of New York, located in the Borough of
Manhattan) in respect of the interpretation and enforcement of the
provisions of this Deed, and in respect of the transactions
contemplated hereby, and Xx. Xxxxxx hereby waives, and agrees not to
assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that he
is not subject thereto or that such action, suit or proceeding may not
be brought or is not maintainable in said courts or that the venue
thereof may not be appropriate or that this Deed or any such document
may not be enforced in or by such courts, and Xx. Xxxxxx irrevocably
agrees that all claims with respect to such action or proceeding shall
be heard and determined in such a Federal court. Xx. Xxxxxx hereby
consents to and grants any such court jurisdiction over himself and
over the subject matter of such dispute and agrees that mailing of
process or other papers in connection with any such action or
proceeding in the manner provided in Clause 11 of this Deed or in such
other manner as may be permitted by law shall be valid and sufficient
service thereof.
16. WAIVER OF JURY TRIAL
XX. XXXXXX ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS DEED IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES
AND, THEREFORE, HE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT HE MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS DEED OR THE
TRANSACTIONS CONTEMPLATED BY THIS DEED. XX. XXXXXX CERTIFIES AND
ACKNOWLEDGES THAT (1) NO REPRESENTATIVE, AGENT OR ATTORNEY OF P&O
PRINCESS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT P&O PRINCESS
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (2) HE UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, AND (3) HE MAKES THIS WAIVER VOLUNTARILY.
IN WITNESS WHEREOF this DEED has been executed by the party hereto and is
intended to be and is hereby delivered on the date first above written.
Executed as a deed by )
XXXXX XXXXXX in the presence of: ) /s/ Xxxxx Xxxxxx
[Signature of witness] /s/ Xxxx X. Xxxxxxx
[Name of witness (in print)]
[Address of witness]
[Occupation]
(EXHIBIT A)
THE COMPANY
LIST OF CARNIVAL PARTIES
NAME NUMBER OF SHARES(1)
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SOLE SHARED SOLE SHARED
VOTING VOTING DISPOSITIVE DISPOSITIVE
POWER POWER POWER POWER
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Mr. Xxxxx Xxxxxx 129,694,864 93,847,639(2) 123,652,677(3) 0
JMD Delaware, Inc. 9,524,560(4) 1,000,000(5) 16,566,747 0
JMD Protector, Inc. 30,085,716(6) 92,847,639(7) 122,933,355(8) 0
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1 The numbers of Shares listed in these columns do not include the
3,653,168 shares of Carnival Common Stock held by TAMMS Investment
Company, L.P., over which shares JMD Protector may be deemed to have
Voting Power and power over Disposition. Such shares shall not be
subject to the terms of this Deed, and JMD Protector is not required to
take any action under this Deed with respect to such shares.
2 With respect to all of these Shares, Xx. Xxxxxx shares Voting Power
with either JMD Delaware, Inc. or JMD Protector, Inc.
3 With respect to all of these Shares, Xx. Xxxxxx has both sole Voting
Power and sole power over Disposition (except with respect to the power
over Disposition of Shares that may be subject to a Disposition
permitted by Clause 7.1(a) of this Deed Poll).
4 With respect to all of these Shares, JMD Delaware, Inc. has both sole
Voting Power and sole power over Disposition (except with respect to
the power over Disposition of Shares that may be subject to a
Disposition permitted by Clause 7.1(a) of the Deed Poll executed today
by JMD Delaware, Inc.).
5 With respect to all of these Shares, JMD Delaware, Inc. shares Voting
Power with Xx. Xxxxxx.
6 With respect to all of these Shares, JMD Protector, Inc. has both
sole Voting Power and sole power over Disposition (except with respect
to the power over Disposition of Shares that may be subject to a
Disposition permitted by Clause 7.1(a) of the Deed Poll executed today
by JMD Protector, Inc.).
7 With respect to all of these Shares, JMD Protector, Inc. shares
Voting Power with Xx. Xxxxxx.
8 With respect to 92,847,639 of these Shares (excluding those Shares
described in footnote 6), JMD Protector, Inc. has sole power over
Dispositions and shares Voting Power only with Xx. Xxxxxx.
(EXHIBIT B)
IMPLEMENTATION AGREEMENT
