EXHIBIT 10.4
SHAREHOLDERS' AGREEMENT
(CRC Holdings, Inc.)
THIS SHAREHOLDERS' AGREEMENT (the "Agreement") dated as of
this 30th day of June, 1998, by and between Carnival Corporation,
a Panamanian corporation ("CCL"); and Xxxxxxxx X. Xxxxxx, Xxxxxx
X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, CHC Investors
Partners, L.P., a Delaware limited partnership, Xxxxxx Xxxxxxx,
W. Xxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, and Xxxx Xxxxxxxxxxx
(collectively the "X-X Shareholders" and individually a "X-X
Shareholder")
RECITALS
A. CCL and the X-X Shareholders are the sole shareholders of
CRC Holdings, Inc., a Florida corporation (the "Company"), and as
of the effective date of this Agreement own the number of shares
of the issued and outstanding capital stock of the Company in the
percentages set forth in Exhibit A attached hereto. CCL and the
X-X Shareholders may sometimes hereafter be collectively referred
to as the "Shareholders" or individually as "Shareholder."
B. The Shareholders desire to enter into this Agreement
pursuant to Section 607.0731 of the Florida Business Corporation
Act, for the purpose of providing (1) that so long as CCL and/or
its "Covered Transferees" (as such term is defined in Section 1
of this Agreement) and any of the X-X Shareholders and/or their
Covered Transferees own shares of the common stock of the
Company,. they will vote their shares of the capital stock of the
Company for the election of certain directors designated by CCL
and certain directors designated by the X-X Shareholders (all as
herein set forth) and for certain directors jointly agreed to by
CCL and the X-X Shareholders and (2) for the harmonious and
successful management and control of the Company.
AGREEMENT
In consideration of the premises and of the benefits flowing
to the parties hereto and to the Company, by virtue of the
Agreements herein set forth CCL and the X-X Shareholders agree as
follows:
1. Covered Transferees. As used in this Agreement, the
term "Covered Transferees" shall mean (a) CCL and the X-X
Shareholders, (b) the parents, siblings, spouse or lineal
descendants of any individual Shareholder or Covered Transferee,
(c) a trust for the benefit of such Covered Transferees (provided
that the voting rights with respect to shares of capital stock of
the Company owned by any such trust are retained only by the
transferor or a Covered Transferee), (d) an "Affiliate", (as such
term is defined in Rule 144 promulgated under the Securities Act
of 1933, as amended) of CCL or any X-X Shareholder or Covered
Transferee or (e) in the case of CCL, any member of a "group"
which at the time of transfer of shares of capital stock of the
Company by CCL owns 5% or more of the issued and outstanding
shares of common stock of CCL and has filed a Schedule 13D or 13G
with respect to such 5% or more ownership.
2. Articles of Incorporation and Bylaws. None of the
Shareholders or their Covered Transferees shall vote their shares
or execute a written consent for the amendment of the Articles
Incorporation or Bylaws of the Company unless the holders of a
majority of the shares of capital stock of the Company owned by
each of CCL and its Covered Transferees and the X-X Shareholders
and their Covered Transferees first execute and deliver to the
other Shareholders and their Covered Transferees a written
statement that they are in favor of the adoption of the
amendment. If both such statements are delivered at least ten
days prior to the date of the meeting at which the shareholders
of the Company will vote on such amendment, then all Shareholders
and their Covered Transferees shall vote their shares of the
capital stock of the Company for the proposed amendment. In the
event of any conflict between the provisions of this Agreement
and the Articles of Incorporation and/or Bylaws of the Company,
as among the Shareholders and their Covered Transferees, the
provisions of this Agreement shall take precedence.
3. Directors.
3.1. At each election of directors of the Company, CCL and
the X-X Shareholders and their respective Covered Transferees
shall vote their shares of the capital stock of the Company to
elect as directors of the Company (a) two persons designated in
writing by the holders of a majority of the shares of capital
stock of the Company owned by CCL and its Covered Transferees;
(b) subject to the provisions of the next sentence, at least two
persons designated in writing by the holders of a majority of the
shares of capital stock of the Company owned by the X-X
Shareholders and their Covered Transferee(s); and (c) only such
other persons (the "Independent Directors") as are first agreed
to in writing by the holders of a majority of the shares of the
capital stock of the Company owned by each of CCL and its Covered
Transferees and the X-X Shareholders and their Covered
Transferees. Notwithstanding the foregoing, in the event that
pursuant to clause (b) of the preceding sentence, the X-X
Shareholders and their Covered Transferees designate three, four,
five or six persons and all of such designees consist solely of
more than two of Xxxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx and W. Xxxxx Xxxxxxx, CCL
and its Covered Transferees and the X-X Shareholders and their
Covered Transferees shall vote their shares of the capital stock
of the Company to elect all of such persons so designated by the
X-X Shareholders as directors pursuant to said clause (b). In
the event that the holders of a majority of the shares of the
capital stock of the Company owned by each of CCL and its Covered
Transferees and the X-X Shareholders and their Covered
Transferees cannot agree on one or more persons to vote for as
Independent Directors, they shall submit such disagreement to
those of the Independent Directors then in office who are not
employees of the Company or any of its subsidiaries and shall
then vote their shares of capital stock of the Company for such
nominees as are chosen by such Independent Directors, provided
that without the consent of the majority in interest of both CCL
and its Covered Transferees and the X-X Shareholders and their
Covered Transferees the number of Independent Directors shall not
be increased beyond the number of Independent Directors
hereinafter designated in this Agreement.
3.2. Initially, CCL designates pursuant to clause (a) of
Section 3.1, Xxxxx Xxxxxx and Xxxxxx X. Xxxxx as directors and
the X-X Shareholders designate pursuant to clause (b) of Section
3.1, Xxxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx and W. Xxxxx Xxxxxxx as directors
and CCL and the X-X Shareholders agree, pursuant to clause (c) of
Section 3.1, that Xxxxx Xxxxx and Xxxx X. Xxxxxx shall serve as
Independent Directors.
3.3. No Shareholder or his or her Covered Transferees shall
vote to remove a director designated pursuant to clauses (a) or
(b) of Section 3.1 unless the designating Shareholder(s) and
their Covered Transferees give written notice to the other
Shareholders and their Covered Transferees that the designating
Shareholders and their Covered Transferees want that director
removed. No Shareholder or his or her Covered Transferee shall
vote to remove an Independent Director unless such removal is
first agreed to in writing by the holders of a majority of the
shares of capital stock of the Company owned by each of CCL and
its Covered Transferees and the X-X Shareholders and their
Covered Transferees. In any such event, all of the Shareholders
and their Covered Transferees shall vote their shares of the
capital stock of the Company to remove such Independent Director.
In the event of the death, resignation or removal of a director
designated by one or more Shareholders and their Covered
Transferees pursuant to clauses (a) or (b) of Section 3.1, the
Shareholders and their Covered Transferees shall vote their
shares of the capital stock of the Company to elect as a
replacement director a person designated by the Shareholder(s)
and Covered Transferees who originally designated the deceased,
resigned or removed person as a director of the Company. In the
event of the death, resignation or removal of an Independent
Director, the Shareholders and their Covered Transferees shall
vote their shares of capital stock of the Company pursuant to
clause (c) of Section 3.1 for the election of a replacement.
4. Share Certificates. All transfers of shares of capital
stock of the Company to Covered Transferees shall be subject to
all of the terms, conditions and provisions of this Agreement.
All certificates representing shares of the capital stock of the
Company held by Shareholders and Covered Transferees shall be
endorsed with the following legend:
The Shares represented by this certificate are subject
to the terms and conditions of a Shareholders'
Agreement dated as of __________, 1998 which Agreement,
among other things, contains various provisions with
respect to the manner in which the Shares are to be
voted.
All Shareholders who presently hold certificates evidencing
their ownership of shares of the capital stock of the Company
shall, as soon as reasonably possible after the execution of this
Shareholders' Agreement deliver their certificates to the
Secretary of the Company, who will then add the aforedescribed
legend to such certificates and who will return such certificates
forthwith to the respective shareholders.
In connection with the transfer of shares of the capital
stock of the Company by a Shareholder or a Covered Transferee to
a Covered Transferee, the transferor shall cause the certificates
that are issued to the Covered Transferee to bear said legend and
to have the Covered Transferee execute a copy of this Agreement
in the place provided for its execution by Covered Transferees.
In connection with the transfer of shares of the capital stock of
the Company by a Shareholder or Covered Transferee to a non-
Covered Transferee, the transferor shall cause the certificates
that are issued to the non-Covered Transferee not to bear said
legend.
5. Term. The term of this Agreement shall be effective as
of the date set forth in the preamble to this Agreement and shall
terminate on the earlier of (a) the dissolution of the Company,
(b) the written agreement of all CCL and its Covered Transferees
and the X-X Shareholders and their Covered Transferees, (c) at
such time as either CCL and its Covered 'Transferees in the
aggregate or the X-X Shareholders and their Covered Transferees
in the aggregate cease to own, of record or beneficially, at
least 10% of the issued and outstanding shares of capital stock
of the Company, or (d) 10 years from the date of this Agreement.
6. Counterparts and Telefax Executions. Any notices or
written consents of Shareholders or Covered Transferees may be
executed in counterparts. In lieu of original signatures on any
such instrument, a telefax copy of the signatures shall suffice;
provided, however, it is expected, but not necessary to give
effect to any such telefax copy, that the Shareholder or Covered
Transferee who executes any such instrument and sends a telefax
copy will as soon thereafter-as practicable send the original
executed copy to the persons to whom such telefax copy was sent.
7. Remedies. In addition to any of the remedies which may
be provided for in this Agreement or by law, in the event of a
breach of this Agreement by any Shareholder or Covered
Transferee, the other Shareholders and Covered Transferees shall
have the right to seek an injunction (both temporary and
permanent), specific performance and other equitable remedies.
In the event of any dispute, arbitration or litigation between or
among the Shareholders and/or Covered Transferees to enforce the
provisions of, or with respect to this Agreement, the prevailing
party(ies) shall be entitled to reasonable attorneys' and court
costs, including those for appellate proceedings and for
paralegals and similar persons.
8. Miscellaneous.
8.1. Notices. All notices, demands or requests
provided for or permitted to be given pursuant to this Agreement
must be in writing and shall be delivered or sent, with the
copies indicated, by personal delivery, telefax or overnight
delivery service to the parties as follows (or at such other
address as a party as shall be specified by notice given pursuant
to this Section):
To any one or more of the X-X Shareholders: [addressee]
c/o Carnival Resorts &
Casinos
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxx, XX 00000
Telefax: (000) 000-0000
With a copy to each of: Xxxxxxxxx Xxxxxxx, P.A..
0000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Telefax: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
and to: Xxxxxxxx X. Xxxxxx
Chairman of the Board and
Chief Executive Officer
CRC Holdings, Inc.
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxx, XX 00000
Telefax: (000) 000-0000
To CCL: Xxxxxx X. Xxxxx
Vice Chairman and
Chief Operating Officer
Carnival Corp.
0000 X.X. 00 Xxxxxx
Xxxxx, XX 00000
Telefax: (000) 000-0000
With a copy to each of: Holland & Knight
000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Telefax: (000) 000-0000
Attn: Xxxxx Xxx Xxxxx, Esq.
and to: Xxxxxxx Xxxxx, Esq.
Vice President and General
Counsel
Carnival Corporation
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Telefax: (000) 000-0000
To a Covered Transferee: Such address as the
Covered Transferee gives to
the Shareholders and other
Covered Transferees
All notices shall be deemed given one business day after
their delivery to the addresses for the respective party(ies),
with the copies indicated as provided in this Section.
8.2. Entire Agreement. This Agreement, contains the
sole and entire agreement among the Shareholders with respect to
their subject matter and supersedes any and all other prior
written or oral agreements among them with respect to such
subject matter.
8.3. Amendment. No amendment or modification of this
Agreement shall be valid unless in writing and duly executed by
the parties affected by the amendment or modification.
8.4. Binding Effect. This Agreement shall he binding
upon the parties and their respective representatives, successors
and assigns.
8.5. Waiver. Waiver by any party of any breach of any
provision of this Agreement shall not be considered as or
constitute a continuing waiver or a waiver of any other breach of
the same or any other provision of this Agreement.
8.6. Captions. The captions contained in this
Agreement are inserted only as a matter of convenience or
reference and in no way define, limit, extend or describe the
scope of this Agreement or the intent of any of its provisions.
8.7. Construction. In the construction of this
Agreement, whether or not so expressed, words used in the
singular or in the plural, respectively, include both the plural
and the singular and the masculine, feminine and neuter genders
include all other genders. Since all parties have engaged in the
drafting of this Agreement, no presumption of construction
against any party shall apply.
8.8. Section, Schedule and Exhibit References. All
references contained in this Agreement to Sections, Schedules and
Exhibits shall be deemed to be references to Sections of, and
Schedules and Exhibits attached to, this Agreement, except to the
extent that any such reference specifically refers to another
document. All references to Sections shall be deemed to also
refer to all subsections of such Sections, if any.
8.9. Severability. In the event that any portion of
this Agreement is illegal or unenforceable, it shall affect no
other provisions of this Agreement, and the remainder of this
Agreement shall be valid and enforceable in accordance with its
terms.
8.10. Absence of Third Party Beneficiaries. Nothing
in this Agreement, express or implied, is intended to (a) confer
upon any entity or person other than the parties to this
Agreement and their authorized successors and assigns any rights
or remedies under or by reason of this Agreement as a third-party
beneficiary or otherwise; or (b) authorize anyone not a party to
this Agreement to maintain an action or institute an arbitration
proceeding pursuant to or based upon this Agreement.
8.11. Business Day. As used in this Agreement, the
term "business day" means any day other than a Saturday, Sunday
or legal or bank holiday in the City of Miami, Florida. If any
time period set forth in this Agreement expires on other than a
business day in such City, such period shall be extended to and
through the next succeeding business day in such City.
8.12. Assignment. Neither this Agreement nor any
rights in and to shares of the capital stock of the Company may
be assigned by any party without the written consent of all other
parties.
8.13. Other Documents. The parties shall take all
such actions and execute all such documents which may be
necessary to carry out the purposes of this Agreement, whether or
not specifically provided for in this Agreement. .
8.14. Governing Law. This Agreement and the
interpretation of its terms shall be governed by the laws of the
State of Florida, without application of conflicts of law
principles.
8.15. Attorneys' Fees. CCL and the X-X Shareholders
shall pay their respective attorneys' fees for the negotiation
and preparation of this Agreement.
8.16. X-X Shareholders' Representative. Each of the W-
L Shareholders on. his or her their own behalf and an behalf of
their respective Covered Transferees designates Xxxxxxxx X.
Xxxxxx, and in his absence or during periods of his
unavailability Xxxxxx X. Xxxxxx, as his or her representative for
all purposes under this Agreement, including designation of
directors, receipt of disclosures, granting and/or executing
consents or waivers, receiving notices and agreeing to and
executing amendments and/or modifications to this Agreement. Any
such receipt, grant, agreement and/or execution by the X-X
Shareholders' representative shall he valid and binding on all of
the X-X Shareholders and their Covered Transferees. The
designation by the X-X Shareholders of the their representative
may not be revoked without the written consent of CCL.
8.17. CCL's Representative. CCL on its own behalf and
on behalf of its Covered Transferees designates CCL (or, if CCL
no longer owns shares of capital stock of the Company, Xxxxx
Xxxxxx) as his, her or its representative for all purposes under
this Agreement, including designation of directors, receipt of
disclosures, granting and/or executing consents or waivers,
receiving notices and agreeing to and executing amendments and/or
modifications to this Agreement. Any such receipt, grant,
agreement and/or execution by CCL's representative shall be valid
and binding on CCL and its Covered Transferees. The designation
by CCL of CCL's representative may not be revoked without the
written consent of the X-X Shareholders' Representative.
8.18. Counterparts. This Agreement may be executed
and delivered in two or more counterparts, each of which shall be
deemed to be an original and all of which, taken together, shall
be deemed to be one agreement.
The parties have executed this Agreement as of the date set
forth above.
CARNIVAL CORPORATION., a
Panamanian corporation
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Sr. Vice President Finance
and CFO
/s/ Xxxxxxxx X.Xxxxxx
Xxxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
CHC Investors Partners, L.P.
By:CHC Operating Corporation,
its General Partner
By:/s/ Xxxxx Xxxxxxx
Name:Xxxxx Xxxxxxx
Title:President
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
/s/ W. Xxxxx Xxxxxxx
W. Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
/s/ Xxxx Xxxxxxxxxxx
Xxxx Xxxxxxxxxxx
COVERED TRANSFEREES
_____________________________
_____________________________
_____________________________
EXHIBIT A
X-X Shareholders Number of Shares Owned Percentage of Ownership
CARNIVAL CORPORATION 2,490,000 23.18%
XXXXXXXX X. XXXXXX 2,324,670 21.64%
XXXXXX X. XXXXXX 2,324,670 21.64%
XXXXXX X. XXXXXX 861,865 8.02%
XXXXX X. XXXXXX 861,865 8.02%
CHC INVESTORS PARTNERS, L.P. 531,026 4.94%
XXXXXX XXXXXXX 362,358 3.37%
W. XXXXX XXXXXXX 466,035 4.34%
XXXXXX XXXXXXX 400,273 3.73%
XXXXXXX X. XXXXXX 19,840 0.18%
XXXXXX X. XXXXXX 19,840 0.18%
XXXXXXX X. XXXXXX 19,840 0.18%
XXXXX X. XXXXXX 29,760 0.28%
XXXX XXXXXXXXXXX 29,760 0.28%
TOTAL 10,741,802 100.00%
