EXHIBIT 4.4
AGREEMENT
This Agreement, dated October 25, 2002 (this "Agreement"), among
Royal Caribbean Cruises Ltd., a Liberian corporation ("RCCL"), P&O Princess
Cruises plc, a public limited company incorporated in England and Wales
("POPC"), and Joex Limited, a company formed under the laws of the Isle of Man
("JOEX").
WHEREAS, RCCL and POPC are parties to a letter agreement, dated as
of October 11, 2001 (the "Confidentiality Agreement").
WHEREAS, the parties hereto are parties to the Joint Venture
Agreement, dated as of November 19, 2001 (the "Joint Venture Agreement").
WHEREAS, RCCL and POPC are parties to the Implementation Agreement,
dated as of November 19, 2001 (the "Implementation Agreement").
WHEREAS, simultaneously with the execution and delivery hereof, the
board of directors of POPC is withdrawing its recommendation to its shareholders
of the Implementation Agreement and the transactions contemplated by the
Implementation Agreement, which would give RCCL the right to terminate the
Implementation Agreement and thereby to receive the P&O Princess Termination
Amount.
WHEREAS, the parties hereto wish to amend and terminate the Joint
Venture Agreement and to grant to each other mutual releases in connection
therewith, in each case, on the terms and conditions set forth herein.
WHEREAS, RCCL and POPC wish to terminate the Implementation
Agreement and to grant to each other mutual releases in connection therewith, in
each case, on the terms and conditions set forth herein.
WHEREAS, all things necessary to make this Agreement a valid and
binding obligation of the parties hereto in accordance with its respective terms
have been done.
NOW, THEREFORE, the parties hereto agree as follows:
1. All capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Joint Venture Agreement or the
Implementation Agreement, as applicable.
2. In return for good and valuable consideration, the sufficiency of
which is hereby acknowledged, simultaneously with the execution of this
Agreement POPC shall pay to RCCL the P&O Princess Termination Amount by wire
transfer of immediately available funds in the amount of $62,500,00.00 to the
account specified in Appendix A hereto. POPC represents and warrants to RCCL
upon the execution of this Agreement and payment of the P&O Princess Termination
Amount that (i) it has all requisite power and authority to make, and has
taken all corporate action necessary to authorize, the payment of the P&O
Princess Termination Amount to RCCL, (ii) no approvals, consents or other
confirmations are required from any Governmental Entity in connection with the
payment of the P&O Princess Termination Amount to RCCL and (iii) the P&O
Princess Termination Amount is free and clear of any and all Claims (as defined
in Section 3 below).
3. In return for good and valuable consideration, the sufficiency of
which is hereby acknowledged, each of RCCL and POPC, on behalf of itself, its
Subsidiaries and Affiliates, and the directors, officers, employees,
representatives, trustees, agents, successors, assigns and predecessors in
interest of itself, its Subsidiaries and/or its Affiliates (each, for purposes
of this Section 3, a "Releasing Party"), hereby absolutely, fully and forever
releases and discharges each other party hereto, each Subsidiary or Affiliate of
each other party hereto and each director, officer, employee, representative,
trustee, agent, successor, assign and predecessor in interest of each other
party hereto and/or any of their Subsidiaries or Affiliates (each, for purposes
of this Section 3, a "Released Party") from any and all claims, counterclaims,
actions, causes of actions, suits, rights, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialities, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, demands and liabilities whatsoever, whether in law,
admiralty or equity, (collectively "Claims") that any Releasing Party, or any of
them, ever had, now has or hereafter can have against any Released Party, or any
of them, whether jointly or severally, under, or that are based on, arise from
or otherwise relate, directly or indirectly, to, the Implementation Agreement.
4. Notwithstanding anything to the contrary contained in the Joint
Venture Agreement or any acts or omissions by the parties thereto, pursuant to
Section 9.01(a) of the Joint Venture Agreement the parties hereto hereby agree
to terminate the Joint Venture Agreement at 12:01 a.m. (New York City time) on
January 1, 2003 (such time and date, the "JV Termination Date"); provided,
however, that such termination shall occur only if no Change of Control with
respect to RCCL or POPC shall have occurred prior to the JV Termination Date.
The parties agree that, pending any termination pursuant to the preceding
sentence, they shall negotiate in good faith to agree and implement a procedure
in respect of JOEX such that JOEX will, to the maximum extent possible and
permitted by Law and in the most tax-efficient manner, (i) provide funds to each
of RCCL and POPC as soon as possible (whether by loan or some other arrangement)
in an amount equal to the cash previously paid by it to JOEX pursuant to Section
3.01(e) of the Joint Venture Agreement plus the interest actually earned by JOEX
on such amount, less one-half of the expenses incurred and reasonably expected
to be incurred by JOEX prior to the JV Termination Date (in each case, the
"Return Amount"), (ii) make a return of capital to each of RCCL and POPC equal
to the Return Amount and (iii) after any such return of capital, be wound up. If
RCCL and POPC shall not have agreed on the procedure contemplated by the
preceding sentence by the JV Termination Date, then RCCL and POPC shall, to the
maximum extent possible and permitted by Law, take all necessary action to wind
up JOEX and to make a distribution to each of RCCL and POPC in cash equal to the
Return Amount as part of such winding up.
-2-
5. In return for good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party hereto, on behalf of itself, its
Subsidiaries and Affiliates, and the directors, officers, employees,
representatives, trustees, agents, successors, assigns and predecessors in
interest of itself, its Subsidiaries and/or its Affiliates (each, for purposes
of this Section 5, a "Releasing Party"), hereby absolutely, fully and forever
releases and discharges each other party hereto, each Subsidiary or Affiliate of
each other party hereto and each director, officer, employee, representative,
trustee, agent, successor, assign and predecessor in interest of each other
party hereto and/or of any of their Subsidiaries or Affiliates (each, for
purposes of this Section 5, a "Released Party") from any and all Claims that any
Releasing Party, or any of them, ever had, now has or hereafter can have against
any Released Party, or any of them, whether jointly or severally, under, or that
are based on, arise from or otherwise relate, directly or indirectly, to, the
Joint Venture Agreement; provided, however, that the foregoing shall cease to
apply and to have any legal force or effect (i) forever from the date on which a
Change of Control occurs with respect to POPC or RCCL, if such Change of Control
occurs prior to January 1, 2003 and (ii) from the date on which a Trigger Event
as defined in clause (ii) of Section 8.03(f) of the Joint Venture Agreement
occurs with respect to POPC or RCCL until January 1, 2003, if such Trigger Event
occurs prior to January 1, 2003.
6. Notwithstanding anything to the contrary contained in the
Implementation Agreement or any acts or omissions by the parties thereto, RCCL
and POPC hereby terminate the Implementation Agreement pursuant to Section 6.1
thereof effective immediately. POPC acknowledges and agrees that the Voting
Agreement, dated as of December 3, 2001, among POPC, X. Xxxxxxxxxx AS and Cruise
Associates (the "Voting Agreement"), shall terminate and be of no further force
and effect as of the termination of the Implementation Agreement. In return for
good and valuable consideration, the sufficiency of which is hereby
acknowledged, POPC, on behalf of itself, its Subsidiaries and Affiliates, and
the directors, officers, employees, representatives, trustees, agents,
successors, assigns and predecessors in interest of itself, its Subsidiaries
and/or its Affiliates (each, for purposes of this Section 6, a "Releasing
Party"), hereby absolutely, fully and forever releases and discharges each of
Cruise Associates and X. Xxxxxxxxxx AS (each a "Major Stockholder"), each
Subsidiary or Affiliate of each Major Stockholder and each director, officer,
employee, representative, trustee, agent, successor, assign and predecessor in
interest of each Major Stockholder and/or of any of their Subsidiaries or
Affiliates (each, for purposes of this Section 6, a "Released Party") from any
and all Claims that any Releasing Party, or any of them, ever had, now has or
hereafter can have against any Released Party, or any of them, whether jointly
or severally, under, or that are based on, arise from or otherwise relate,
directly or indirectly, to, the Voting Agreement.
-3-
7. POPC represents, warrants and covenants to RCCL that it has not
entered into, and prior to January 1, 2003 will not enter into, any contract or
agreement with any other Person that would prevent, restrict or otherwise limit
in any way its ability, or the ability of its directors, officers, employees,
representatives, advisors or agents, to (i) have discussions with, negotiate
with or furnish information to RCCL, or its directors, officers, employees,
representatives, advisors or agents, with respect to any proposal or offer with
respect to a merger, takeover, reorganization, share exchange, scheme of
arrangement, dual-holding company transaction, consolidation or similar
transaction involving RCCL and POPC (any such proposal or offer, a "POPC/RCCL
Transaction Proposal") or (ii) enter into an agreement in relation to a
POPC/RCCL Transaction Proposal and/or recommend a POPC/RCCL Transaction Proposal
to the shareholders of POPC. POPC further covenants to RCCL that it will
promptly provide RCCL with copies of all business, operating and financial
information (including both historical and prospective information) relating to
POPC and its Subsidiaries which POPC or any of its Representatives furnishes to
Carnival Corporation or any of its Representatives prior to January 1, 2003.
8. Without otherwise limiting their respective rights thereunder,
RCCL and POPC hereby agree that the execution and delivery of this Agreement by
RCCL and POPC shall not trigger any obligation on the part of either RCCL or
POPC pursuant to Section 3 of the Confidentiality Agreement to return any
Information (as defined in the Confidentiality Agreement).
9. No failure or delay on the part of any party hereto in exercising
any right, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder. The rights and remedies provided herein are
cumulative and not exclusive of any rights or remedies which the parties would
otherwise have.
10. Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in the case of an
amendment, by the parties hereto or, in the case of a waiver, by the party
against whom the waiver is to be effective.
11. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto. A
facsimile copy of a signature page shall be deemed to be an original signature
page.
12. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of New York, excluding any
choice-of-law
-4-
principles of the law of such State that would require the application of the
laws of a jurisdiction other than such State.
13. The parties hereby irrevocably submit to the jurisdiction of the
Federal courts of the United States of America located in the Borough of
Manhattan, New York State (or if, but only if, such Federal courts have no
subject matter jurisdiction over such matter, to the jurisdiction of the courts
of the State of New York located in the Borough of Manhattan, New York State)
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and thereby waive, and agree not to assert, as a defense in any
action, suit or proceeding for the interpretation or enforcement hereof, that it
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 Agreement may not be enforced in or by such courts,
and the parties irrevocably agree that all claims with respect to such action or
proceeding shall be heard and determined in such a Federal court (or if, but
only if, such Federal courts have no subject matter jurisdiction over such
matter, in the courts of the State of New York located in the Borough of
Manhattan, New York State).
14. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 14.
15. This Agreement shall constitute the entire agreement, and
supersede all other prior agreements, understandings, representations and
warranties, both written and oral, between the parties with respect to the
subject matter hereof. This Agreement is not intended to confer upon any Person,
other than the parties hereto and any other Persons on whose behalf the releases
and discharges in paragraphs 3, 5 or 6 are given or for whose benefit such
releases and discharges are made, any rights, benefits, obligations, liabilities
or remedies hereunder.
-5-
16. Notwithstanding anything to the contrary contained herein, this
Agreement shall become effective only upon receipt by RCCL of the Settlement
Amount as provided in Section 2.
-6-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
ROYAL CARIBBEAN CRUISES LTD.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Acting Chief Financial Officer
P&O PRINCESS CRUISES PLC
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
JOEX LIMITED
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Director
APPENDIX A
Royal Caribbean Account Details
JPMorgan Chase, New York
ABA#: 000-000-000
Swift Code: XXXXXX00
Account Name: Royal Caribbean Cruises Ltd.
Account#: [omitted]
JPMorgan Chase
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Contact: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
