Exhibit 99.4
AGREED FORM
DATED 2003
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CARNIVAL CORPORATION
[CARNIVAL SVC] LIMITED
P&O PRINCESS CRUISES PLC
P&O PRINCESS TRUSTEE
[CARNIVAL SVC OWNER]
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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 .................................................... 6
3. NOTIFICATION OF OUTCOME ON VOTE ON CLASS RIGHTS ACTIONS ................................ 7
4. ATTENDANCE AT MEETINGS AND VOTING ...................................................... 8
5. DEALINGS ............................................................................... 11
6. OBLIGATIONS SUBJECT TO APPLICABLE REGULATIONS .......................................... 12
7. DEFAULT BY CARNIVAL OR P&O PRINCESS .................................................... 12
8. SUPPLY OF INFORMATION; CONFIDENTIALITY ................................................. 12
9. REMUNERATION AND EXPENSES OF SVES ...................................................... 13
10. POWER OF SVES .......................................................................... 14
11. INDEMNITIES ............................................................................ 15
12. ACTIVITIES ............................................................................. 16
13. MANAGEMENT OF SVES ..................................................................... 16
14. AMENDMENTS TO THIS DEED ................................................................ 17
15. DAMAGES NOT ADEQUATE REMEDY ............................................................ 17
16. TERMINATION ............................................................................ 17
17. GENERAL ................................................................................ 18
THIS SVE SPECIAL VOTING DEED is dated 2003
BETWEEN
(1) CARNIVAL CORPORATION, a Panamanian corporation, having its principal
place of business at Carnival Place, 0000 X.X. 00xx Xxxxxx, Xxxxx,
Xxxxxxx, 00000-0000 ("Carnival");
(2) CARNIVAL SVC LIMITED, a company incorporated in England and Wales
(Registered No. [.]), having its registered office at [.] ("Carnival
SVC");
(3) P&O PRINCESS CRUISES PLC, a company incorporated in England and Wales
(Registered No 4039524) and having its registered office at 00 Xxx Xxxxxx
Xxxxxx, Xxxxxx, XX0X 0XX ("P&O Princess");
(4) [.], a __________ corporation, having its principal place of business at
[.], 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 __________ pursuant to the Voting Trust Agreement between
Carnival and the P&O Princess Trustee of even date herewith (the "P&O
Princess SVT Constitution"); and
(5) [.], a company incorporated in England and Wales (Registered No [.]),
having its registered office at [.] (the "Carnival 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) Carnival 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 Carnival SVC Owner is the legal and beneficial owner of all the
shares in Carnival 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;
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"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 Equivalent Number" has the same meaning as in the Equilization
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 Carnival
Equivalent Number 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;
"Carnival SVC Constitution" means the Memorandum and Articles of
Association of Carnival SVC;
"Cast" means, separately, the number of votes recorded (i) in favour;
(ii) against; and (iii) formally abstained 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
"Class Rights Action" has the same meaning as in the Equalization
Agreement;
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"Companies Act" means the UK Companies Xxx 0000 as amended;
"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 a share or an interest in a share or the rights
attaching to a share, 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 share or interest or rights in
any way whatsoever and "Dealing" shall be construed accordingly;
"DLC Structure" means 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 xxxx 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;
"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 or 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 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);
"Governmental Agency" has the same meaning as in the Equalization
Agreement;
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"Implementation Agreement" means the Offer and Implementation Agreement,
dated as of 8 January 2003, between Carnival and P&O Princess;
"Joint Electorate Action" has the same meaning as in the Equalization
Agreement;
"London Stock Exchange" means London Stock Exchange plc;
"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.;
"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 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 Group" has the same meaning as in the Equalization
Agreement;
"P&O Princess ADS" means an American Depositary Share of P&O Princess,
each of which currently represents four P&O Princess Ordinary Shares,
which is listed on the NYSE;
"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
(pound)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 in relation to the Equivalent Resolution of
P&O Princess at the Parallel Shareholder Meeting of
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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;
"SEC" means the United States Securities and Exchange Commission;
"Shares" means, in relation to P&O Princess, the P&O Princess Ordinary
Shares and, in relation to Carnival, the Carnival Common Stock;
"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;
"UKLA" means the Financial Services Authority in its capacity as
competent authority for the purposes of Part VI of the UK Financial
Services and Markets Xxx 0000; 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 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.
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(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.
(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
the Carnival 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 17.4 a report of
the
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inspectors of election for such shareholder meeting setting forth the
details in (a) below and a statement by a duly authorised officer of
Carnival setting forth the details in (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; 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 Carnival 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 Carnival SVC and
Carnival in writing in accordance with clause 17.4 a report of the
inspectors of election for such shareholder meeting setting forth the
details in (a) below and a statement by a duly authorised officer of P&O
Princess setting forth the details in (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; 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 Carnival SVC
is required to vote the P&O Princess Specified Numbers attaching to
the Carnival Special Voting 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 Carnival 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 17.4:
(a) a report of the inspectors of election for such shareholder meeting
setting forth how the votes were Cast (including the number of votes
Cast) at the meeting of Carnival shareholders in relation to each such
Equivalent Resolution; and (b) a statement by a duly authorised officer
of Carnival setting forth whether or not each such Equivalent
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Resolution or resolutions was approved by the requisite majority pursuant
to the Carnival Constitution and/or Applicable Regulations.
3.2 Notification by P&O Princess
P&O Princess agrees with Carnival and Carnival 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
Carnival SVC and Carnival in writing and in accordance with clause 17.4:
(a) a report of the inspectors of election for such shareholder meeting
setting forth 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; and (b) a statement by a duly authorised
officer of P&O Princess setting forth 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.
4. ATTENDANCE AT MEETINGS AND VOTING
4.1 Attendance at meetings
(a) Carnival 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,
Carnival SVC shall be present by its duly appointed corporate
representative or by proxy or proxies. Carnival agrees to notify
Carnival SVC in writing and in accordance with clause 17.4 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 Carnival SVC shall
be entitled to rely on any such notice for the purposes of this
Deed. Carnival also agrees to notify Carnival SVC in advance and in
writing in accordance with clause 17.4 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 Carnival 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 17.4 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 17.4 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 Carnival SVC shall be entitled
to rely on any such notice for the purpose of this Deed.
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4.2 Vote in accordance with constitution
(a) Carnival 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) Carnival 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 reports and the statement delivered
under clause 2.2.
(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 reports and the statement
delivered under clause 2.1.
4.4 Vote on Class Rights Action
(a) Carnival 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:
(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 a 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
Articles and By-laws (including 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 Articles and By-laws
(including the Carnival Special Voting Share) were cast in
favour of the resolution at the Carnival Parallel Shareholder
Meeting.
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(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:
(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
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 Memorandum and
Articles (including 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 needed to be passed by a special (or
extraordinary) 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 (less one vote) as would be necessary
to defeat a special (or extraordinary) 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 Memorandum and Articles (including the P&O
Princess Special Voting Share) were cast in favour of the
resolution at the P&O Princess Parallel Shareholder Meeting.
4.5 Amendments to resolutions
(a) Carnival 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 17.4.
(b) The P&O Princess Trustee are 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 17.4.
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4.6 No discretion as to voting
Each of Carnival 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.
4.7 Procedural and technical resolutions
Carnival SVC and the P&O Princess Trustee will be entitled to rely on a
certificate given to it in writing (in accordance with clause 17.4) 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 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 the Carnival SVC and the P&O Princess
Trustee).
5. DEALINGS
5.1 P&O Princess SVT
Subject to clause 16.3, 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 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. No transfer
of the P&O Princess 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 P&O Princess Trustee in violation of
this clause 5.1 shall be null and void.
5.2 Carnival SVC
Subject to clause 16.2, Carnival SVC agrees with P&O Princess and
Carnival that 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. 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 Carnival SVC in violation of this clause 5.2
shall be null and void.
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6. OBLIGATIONS SUBJECT TO APPLICABLE REGULATIONS
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.
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 Carnival SVC or the P&O Princess
Trustee, respectively, Carnival SVC or the P&O Princess Trustee, as the
case may be, shall 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
So long as Carnival SVC is registered as the holder of the Carnival
Special Voting Share and 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 and Carnival SVC, as
the case may be, or any person approved by Carnival or P&O Princess and
appointed in writing by Carnival SVC or the P&O Princess Trustee, as the
case may be, such information as Carnival SVC or the P&O Princess
Trustee, as the case may be, or such appointed person shall reasonably
require (other than information which is of a price-sensitive nature and
not generally available) for the purpose of the discharge of the powers,
duties and discretions vested in Carnival SVC or the P&O Princess
Trustee, as the case may be, under this Deed. All information provided by
P&O Princess and Carnival under this clause 8.1 shall (if requested by
Carnival SVC or the P&O Princess Trustee) be in writing and in accordance
with clause 17.4 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 Carnival 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,
the Carnival 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.
12
9. REMUNERATION AND EXPENSES OF CARNIVAL 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 Carnival SVC or as it shall otherwise
direct, such fees and expenses as may be agreed from time to time between
Carnival, P&O Princess, Carnival SVC and the P&O Princess Trustee for the
performance by Carnival SVC and the P&O Princess Trustee of their
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: (a) the P&O Princess Trustee
ceasing to be registered as the holder of the P&O Princess Special
Voting Share and (b) the termination of this Deed in accordance
with clause 16; and
(b) by P&O Princess until the later of (a) Carnival SVC ceasing to be
registered as the holder of the Carnival Special Voting Share and
(b) the termination of this Deed in accordance with clause 16.
9.3 Exceptional duties
In the event either Carnival SVC or the P&O Princess Trustee finds it is
necessary or 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 Carnival
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.
9.4 VAT and similar taxes
The remuneration referred to in clause 9.1, 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 SVEs 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 or 16.3 of the Carnival Special
Voting Share or the P&O Princess Special Voting Share, as the case may be
or with the transfer of the P&O Princess Special Voting Share or the
Carnival Special Voting Share under clause 16.4.
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10. POWER OF CARNIVAL SVC AND P&O PRINCESS TRUSTEE
10.1 Act on advice
Each of the Carnival SVC and the P&O Princess Trustee may in the proper
performance of its obligations and the exercise of the powers,
authorities and discretion 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 Carnival SVC or the
P&O Princess Trustee or otherwise, and in such case, provided that the
Carnival SVC or the P&O Princess Trustee (as the case may be) shall have
acted reasonably in its choice of any such person, the relevant Carnival
SVCs 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 may incur or which may be made against it 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. The Carnival SVCs 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 Carnival SVC and the P&O Princess Trustee
Each of the Carnival SVCs 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.
10.3 Act on resolution
Carnival 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
Carnival SVC and the P&O Princess Trustee shall be at liberty to accept a
notice given under clause 17.4 signed or purporting to be signed by any
director of Carnival
14
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 Carnival 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 or 4.5) or a statement to the effect
that in the opinion of the persons so certifying any particular
dealing, transaction, step or thing is expedient. Carnival 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
Carnival 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, Carnival 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 Carnival 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.
11. INDEMNITIES
11.1 Indemnity by P&O Princess
Subject to clause 11.2, P&O Princess agrees with Carnival SVC to
indemnify it, its directors, officers, employees, controlling persons
and every attorney, manager, agent, delegate or other person appointed
by it under this Deed 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 Carnival
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
Carnival SVC or, as the case may be, any attorney, manager, agent,
delegate or other person appointed by Carnival SVC under this Deed
(collectively "Indemnified Parties") has been guilty of fraud or
negligence in the performance of any of its duties under this Deed or
15
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
For as long as Carnival SVC shall be registered as the holder of the
Carnival Special Voting Share and the P&O Princess Trustee shall be
registered as the holder of the P&O Princess Special Voting Share, (i)
the Carnival SVC Owner agrees that the only activities carried out by
Carnival SVC shall be such activities as are necessary or expedient in
order for Carnival SVC and (ii) 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, in each case, to perform its
respective obligations and exercise its respective powers, authorities
and discretions pursuant to this Deed, the P&O Princess SVT Constitution,
the Carnival Constitution, the P&O Princess Articles and the Pairing
Agreement among the P&O Princess Trustee, Carnival and the transfer agent
named therein, as the case may be, and 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).
13. GOVERNANCE MATTERS
13.1 Members of Carnival SVC
For as long as Carnival SVC is registered as the holder of the Carnival
Special Voting Share, the Carnival SVC Owner, Carnival and P&O Princess
agree that the Carnival SVC will have only one member, being the Carnival
SVC Owner, and that Carnival SVC shall maintain its status as a limited
liability company under the laws of England and Wales.
13.2 Directors of Carnival SVC
For as long as Carnival SVC is registered as the holder of the Carnival
Special Voting Share, the board of directors of the Carnival SVC shall
comprise such persons as are appointed or approved by the Carnival SVC
Owner. The Carnival SVC Owner shall not appoint any person as a director
of the Carnival 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 P&O Princess SVT Constitution. Carnival
agrees with P&O Princess that it shall not replace the P&O Princess
Trustee pursuant to Section 7.08 of the P&O Princess SVT Constitution
without the prior written consent of P&O Princess. If the P&O Princess
Trustee is replaced at any time in accordance with Section 7.08 of the
P&O Princess SVT Constitution, the P&O Princess Trustee shall novate its
rights and obligations under this Deed to the successor trustee appointed
16
thereunder, and all references to the P&O Princess Trustee in this Deed
shall be deemed to be reference to such successor trustee.
14. AMENDMENTS TO THIS DEED
Carnival SVC, the P&O Princess Trustee and the Carnival 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; 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
Carnival SVC, the P&O Princess Trustee and/or the Carnival SVC Owner
under this Deed or any provision affecting the performance by Carnival
SVC, the P&O Princess Trustee and/or the Carnival SVC Owner of its
obligations under this Deed, such modification shall require the consent
of Carnival SVC, the P&O Princess Trustee and/or the Carnival SVC Owner,
such consent not to unreasonably withheld or delayed.
15. DAMAGES NOT ADEQUATE REMEDY
Each of Carnival SVC, Carnival, P&O Princess, the P&O Princess Trustee
and the Carnival 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, 16.1, 16.2, 16.3 and 16.4 shall
continue and 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 and bind the parties for so long
as Carnival 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
17
16.2 Transfer of Carnival Special Voting Share
Upon termination of this Deed in accordance with clause 16.1, Carnival
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, Carnival SVC shall have no
obligation whatsoever in respect of the Carnival Special Voting Share or
under this Deed except that Carnival 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 17.4.
16.3 Transfer of P&O Princess Special Voting Share
Upon termination of this Deed in accordance with clause 16.1, the P&O
Princess Trustee shall promptly, upon being requested to do so, transfer
the P&O Princess Special Voting Share to such person as is notified by
the Board of P&O Princess. Pending notification, the P&O Princess Trustee
shall have no obligation whatsoever in respect of the P&O Princess
Special Voting Share or under this Deed except that the P&O Princess
Trustee must not Deal with the P&O Princess 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 17.4.
16.4 Replacement of the Carnival SVC Owner
If given notice under clause 17.4 to do so by a duly authorised officer
of P&O Princess and by a duly authorised officer of Carnival, Carnival
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"). Carnival SVC agrees to
novate its rights and obligations under this Deed to the Novated Person,
and the Carnival 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 16.4 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 the Carnival SVC shall be to the
Second Novated Person and references in this Deed to the Carnival SVC
Owner shall be to the New SVC Owner.
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
18
the assets or income of the other parties, and they shall not be
construed as having that effect.
17.3 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.
17.4 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:
Carnival Corporation
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Chairman and Chief Executive Officer
Fax: [.]
with copies to
Carnival Corporation
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: General Counsel
Fax: [.]
Carnival SVC Limited
[.]
Attention: The Company Secretary (Ref: [.])
Fax: [.]
P&O Princess Cruises plc
00 Xxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XX
Attention: Chief Executive Officer
Fax: (x00) 00 00000000
with copies to
19
P&O Princess Cruises plc
00 Xxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XX
Attention: General Counsel
Fax: (x00) 00 0000 0000
[The P&O Princess Trustee]
[Address]
Attention:
Fax: (302) [.]
[The Carnival SVC Owner]
[Address]
Attention: The Company Secretary (Ref [.])
Fax: (+44) [.]
Or to such other persons or addresses as may be designated in
writing by any party pursuant to this clause 17.4.
(b) must be signed by a person duly authorised by the sender,
(c) Notices, certificates, reports and statements given under this Deed
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 17.4.
17.5 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.
17.6 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
20
(ii) a right, power, authority, discretion or remedy created or arising
upon default under this Deed,
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.
17.7 Variation
A variation of any term of this Deed must be in writing and signed by all
parties to this Deed.
17.8 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.
17.9 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.
17.10 Third Parties Rights
A person who is not a party to this Deed shall have no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any of its terms.
17.11 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 17.11.
21
(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
22
EXECUTED as a DEED by )
CARNIVAL CORPORATION )
by a duly authorised officer )
_________________________________
Signature
_________________________________
Print name
_________________________________
Office held
EXECUTED as a DEED by )
CARNIVAL SVC LIMITED )
acting by two Directors/a Director and )
Secretary )
EXECUTED as a DEED by )
P&O PRINCESS CRUISES PLC )
acting by two Directors/a Director and )
Secretary )
23
EXECUTED as a DEED by )
[THE P&O PRINCESS TRUSTEE], )
AS TRUSTEE OF THE P&O PRINCESS )
_______________________________
Signature
_______________________________
Print name
_______________________________
Office held
EXECUTED as a DEED by )
[The Carnival SVC Owner] )
acting by two Directors/a Director and )
Secretary )
24
