EXHIBIT 15
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DATED 24 OCTOBER 2002
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JMD PROTECTOR, INC. DEED POLL
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JMD PROTECTOR, INC. DEED POLL
THIS DEED IS MADE BY WAY OF DEED POLL, dated as of 24 October 2002 by JMD
Protector, Inc. (JMD PROTECTOR) 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, Xxxxx Xxxxxx (XX. XXXXXX) and JMD Delaware, Inc. (together with JMD
Protector 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, JMD Protector 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
JMD Protector 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 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 JMD PROTECTOR
JMD Protector represents and warrants to P&O Princess that, as of the
date hereof, (a) JMD Protector 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 JMD
Protector's name in Exhibit A hereto (in the aggregate, JMD Protector's
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) JMD Protector 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 JMD Protector may be
deemed to share Voting Power with other Persons, (c) to the extent JMD
Protector shares Voting Power of its Shares, such powers are shared
solely with Xx. Xxxxxx (d) JMD Protector has 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) JMD Protector has full power and authority and has taken all
actions necessary to enter into, execute and deliver this Deed and has
taken or will take all actions necessary to perform fully its
obligations hereunder, (f) 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 JMD Protector with, nor are
any consents, registrations, approvals, permits or authorizations
required to be obtained by JMD Protector from, any Governmental Entity
or other Person, in connection with the execution and delivery of this
Deed by JMD Protector, other than any such matters the failure of which
to make or obtain would not, individually or in aggregate, impair JMD
Protector's ability to Vote the Shares or New Shares in accordance with
the terms hereof, and (g) the execution, delivery and performance of
this Deed by JMD Protector does not, and the performance by JMD
Protector of the transactions contemplated hereby will not, violate,
conflict with or constitute a breach of, or a default under, the
certificate of incorporation or the by-laws of JMD Protector or its
comparable governing instruments and will not result in any termination
of, or limitation on its Voting Power or power over Disposition with
respect to its Shares, other than any such violations, conflicts,
breaches or defaults that would not, individually or in aggregate,
impair the ability of JMD Protector to Vote the Shares or New Shares in
accordance with the terms hereof. This Deed has been duly executed and
delivered and constitutes the legal, valid and binding obligation of
JMD Protector enforceable against JMD Protector in accordance with its
terms, subject to the Bankruptcy and Equity Exception.
3. UNDERTAKING TO VOTE
JMD Protector agrees to Vote or to cause each relevant owner thereof to
Vote the Shares and any New Shares over which JMD Protector 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
JMD Protector agrees that it will not, nor will it permit any entity
under its CONTROL (as defined in Rule 12b-2 under the Exchange Act) to,
deposit any of the Shares or New Shares over which JMD Protector 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
JMD Protector agrees that it will not, nor will it permit any entity
under its 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
JMD Protector agrees that neither it nor any entity under its Control
nor any of their respective officers or directors shall, and that JMD
Protector shall use its reasonable best efforts to cause the Affiliates
that it Controls, or which Control JMD Protector, and the officers,
directors, employees, investment bankers, attorneys, accountants,
financial advisors, agents or other representatives of, JMD Protector
or any entity under its 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. JMD Protector further agrees that
neither it nor any entity under its Control, or which Controls JMD
Protector, nor any of their respective officers or directors shall, and
that JMD Protector shall and shall direct and use its reasonable best
efforts to cause its 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, JMD
Protector agrees not to and to cause each relevant owner thereof not to
(a) make any Disposition of JMD Protector's Shares and New Shares
except for (i) Dispositions of its 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 its 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 JMD Protector's 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 JMD Protector 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, JMD Protector 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 JMD Protector.
8. ADDITIONAL PURCHASES
JMD Protector agrees that, on or after the date hereof and during the
term of this Deed, if it 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 JMD Protector 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 JMD Protector, 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 to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to JMD Protector, to:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
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 any
director of Carnival from taking any action as a director if such
director reasonably determines in good faith after consultation with
legal counsel that the failure to take such action would result in a
breach of such director's fiduciary duties to the stockholders of
Carnival.
Nothing contained in this Deed shall restrict Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx or Xxxxx X. Xxxxx, Esq. (in his capacity as a
partner thereof) from acting or taking any action as counsel to
Carnival, Xx. Xxxxxx or any record or beneficial owner of the Shares
and New Shares.
13. SPECIFIC PERFORMANCE
JMD Protector 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. Such specific performance
shall be to the exclusion of any other remedy available to P&O Princess
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 JMD Protector or any of the
beneficiaries hereunder. Upon such a determination, JMD Protector 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. Notwithstanding the
foregoing, if it is held that the last sentence of Clause 13 hereof
is invalid, void or unenforceable, then all beneficiaries of this Deed
shall waive all rights to monetary damages.
14.2 FURTHER ASSURANCES
JMD Protector 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
JMD Protector may not assign any of its 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 JMD Protector 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 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 Deed or any such document
may not be enforced in or by such courts, and JMD Protector irrevocably
agrees that all claims with respect to such action or proceeding shall
be heard and determined in such a Federal court. JMD Protector hereby
consents to and grants any such court jurisdiction over itself 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
JMD PROTECTOR ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS DEED IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES AND, THEREFORE, JMD PROTECTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT 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.
JMD PROTECTOR 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) JMD PROTECTOR UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, AND (3) JMD PROTECTOR 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 )
JMD PROTECTOR, INC. )
By a duly authorised officer
/s/ Xxxxx X. Xxxxx
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Signature
Xxxxx X. Xxxxx
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Print name
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Office held
In the presence of: /s/ Xxxx X. Xxxxxxx
[Signature of witness]
[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
