Back to GetFilings.com
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended May 31, 2003
OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from ______________ to ________________
Commission File Number: 1-9610 Commission File Number: 1-15136
Carnival Corporation Carnival plc
(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
Republic of Panama England and Wales
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
59-1562976 none
(I.R.S. Employer (I.R.S. Employer
Identification No.) Identification No.)
3655 N.W. 87th Avenue Carnival House, 5 Gainsford Street,
Miami, Florida 33178-2428 London SE1 2NE, United Kingdom
(Address of principal (Address of principal
executive offices) executive offices)
(Zip code) (Zip code)
(305) 599-2600 011 44 20 7805 1200
(Registrant's telephone number, (Registrant's telephone number,
including area code) including area code)
None December 31
(Former name, former address (Former name, former address
and former fiscal year, if and former fiscal year, if
changed since last report.) changed since last report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No__
Indicate by check mark whether the registrant is an accelerated filer
(as defined in Rule 12b-2 of the Exchange Act). Yes X No__
At July 11, 2003, At July 11, 2003,
Carnival Corporation Carnival plc
had outstanding 629,586,781 had outstading 209,390,300
shares of its common stock, ordinary shares,
$.01 par value. $1.66 stated value
PART I FINANCIAL INFORMATION
Item 1. Financial Statements.
CARNIVAL CORPORATION & PLC
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
(in thousands, except earnings per share)
Six Months Three Months
Ended May 31, Ended May 31,
2003 2002 2003 2002
Revenues $2,365,721 $1,896,430 $1,334,616 $989,899
Costs and Expenses
Operating 1,435,175 1,054,340 819,981 534,777
Selling and
administrative 389,186 293,524 212,068 142,122
Depreciation and
amortization 241,208 182,343 134,725 92,589
2,065,569 1,530,207 1,166,774 769,488
Operating Income 300,152 366,223 167,842 220,411
Nonoperating (Expense) Income
Interest income 13,325 14,415 9,096 7,752
Interest expense,
net of capitalized
interest (70,906) (57,467) (41,514) (28,011)
Other income (expense),
net 3,572 (7,129) (11,156) (12,087)
(54,009) (50,181) (43,574) (32,346)
Income Before
Income Taxes 246,143 316,042 124,268 188,065
Income Tax Benefit, Net 8,531 7,799 3,527 6,136
Net Income $ 254,674 $ 323,841 $ 127,795 $194,201
Earnings Per Share
Basic $0.40 $0.55 $0.19 $0.33
Diluted $0.40 $0.55 $0.19 $0.33
The accompanying notes are an integral part of these consolidated financial
statements.
CARNIVAL CORPORATION & PLC
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(in thousands, except par/stated values)
May 31, November 30,
2003 2002
ASSETS
Current Assets
Cash and cash equivalents $1,381,033 $ 666,700
Short-term investments 67,999 39,005
Accounts receivable, net 347,054 108,327
Inventories 157,779 91,310
Prepaid expenses and other 292,136 148,420
Fair value of derivative contracts 255,715
Fair value of hedged firm commitments 45,370 78,390
Total current assets 2,547,086 1,132,152
Property and Equipment, Net 16,708,612 10,115,404
Goodwill 3,649,236 681,056
Other Assets 325,116 297,175
Fair Value of Derivative Contracts 133,415
Fair Value of Hedged Firm Commitments 109,061
$23,363,465 $12,334,848
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Short-term borrowings $ 49,500 $
Current portion of long-term debt 296,802 154,633
Accounts payable 615,782 268,687
Accrued liabilities 482,663 290,391
Customer deposits 1,436,914 770,637
Dividends payable 82,476 61,612
Fair value of derivative contracts 10,440 73,846
Fair value of hedged firm commitments 280,447
Total current liabilities 3,255,024 1,619,806
Long-Term Debt 6,707,841 3,013,758
Deferred Income and Other
Long-Term Liabilities 307,495 170,814
Fair Value of Derivative Contracts 17,250 112,567
Fair Value of Hedged Firm Commitments 82,279
Commitments and Contingencies (Notes 2, 6 and 7)
Shareholders' Equity
Common stock of Carnival Corporation;
$.01 par value; 1,960,000 shares at
2003 and 960,000 at 2002 authorized;
628,727 shares at 2003 and 586,788 shares
at 2002 issued and outstanding 6,288 5,868
Ordinary shares of Carnival plc;
$1.66 stated value; 225,300 shares
authorized; 209,067 shares issued 347,052
Additional paid-in capital 7,117,454 1,089,125
Retained earnings 6,434,958 6,325,850
Unearned stock compensation (19,404) (11,181)
Accumulated other comprehensive income 165,878 8,241
Treasury stock, 41,881 shares of
Carnival plc at cost (1,058,650)
Total shareholders' equity 12,993,576 7,417,903
$23,363,465 $12,334,848
The accompanying notes are an integral part of these consolidated financial
statements.
CARNIVAL CORPORATION & PLC
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(in thousands)
Six Months Ended May 31,
2003 2002
OPERATING ACTIVITIES
Net income $ 254,674 $ 323,841
Adjustments to reconcile net income to
net cash provided by operating activities
Depreciation and amortization 241,208 182,343
Accretion of original issue discount 10,022 9,644
Other 4,593 9,218
Changes in operating assets and liabilities,
excluding business acquired
Decrease (increase) in
Receivables (38,742) (17,020)
Inventories (4,606) 3,323
Prepaid expenses and other (41,413) (42,268)
Increase (decrease) in
Accounts payable 56,306 2,490
Accrued and other liabilities (33,830) (59,125)
Customer deposits 216,645 294,367
Net cash provided by operating activities 664,857 706,813
INVESTING ACTIVITIES
Additions to property and equipment, net (612,564) (594,355)
Acquired from (expended for) the acquisition of
Carnival plc, net 156,042 (16,841)
Purchase of short-term investments (26,098) (159,888)
Proceeds from retirement of property and equipment 50,919
Other, net (4,680) (2,088)
Net cash used in investing activities (436,381) (773,172)
FINANCING ACTIVITIES
Proceeds from issuance of long-term debt 898,410 77,739
Principal repayments of long-term debt (284,239) (10,743)
Dividends paid (123,245) (123,120)
Proceeds from short-term borrowings, net 49,500
Proceeds from issuance of common stock and
ordinary shares, net 13,922 4,966
Other (12,204) (191)
Net cash provided by (used in)
financing activities 542,144 (51,349)
Effect of exchange rate changes on cash
and cash equivalents (56,287) (6,490)
Net increase (decrease) in cash and
cash equivalents 714,333 (124,198)
Cash and cash equivalents at beginning
of period 666,700 1,421,300
Cash and cash equivalents at end of period $1,381,033 $1,297,102
The accompanying notes are an integral part of these consolidated financial
statements
CARNIVAL CORPORATION & PLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - General
Description of Business
Carnival Corporation is a Panamanian corporation and Carnival plc
(formerly known as P&O Princess Cruises plc) is incorporated in England and
Wales and, along with their consolidated subsidiaries, are referred to
collectively in these consolidated financial statements and elsewhere in this
Quarterly Report on Form 10-Q as "Carnival Corporation & plc," "our," "us,"
and "we."
We are a global cruise company and one of the largest vacation companies
in the world. A summary of the number of cruise ships we operate, by brand,
their passenger capacity and the primary areas in which they are marketed is
as follows:
Cruise Number Passenger Primary
Brands of Cruise Ships Capacity (1) Market
(in thousands)
Carnival Cruise
Lines ("CCL") (2) 19 41,322 North America
Princess Cruises
("Princess") (2)(3)(6) 11 19,880 North America
Holland America Line
("Holland America")(2)(6) 12 16,342 North America
Costa Cruises ("Costa") 9 12,868 Europe
P&O Cruises 4 7,730 United Kingdom
AIDA 3 3,730 Germany
Cunard Line ("Cunard")(4) 2 2,458 United Kingdom/
North America
Ocean Village 1 1,610 United Kingdom
A'ROSA (5) 1 1,590 Germany
P&O Cruises Australia (2)(3) 1 1,200 Australia
Swan Hellenic 1 676 United Kingdom
Seabourn Cruise Line
("Seabourn") 3 624 North America
Windstar Cruises
("Windstar") 3 604 North America
70 110,634
(1) In accordance with the cruise industry practice, passenger capacity is
calculated based on two passengers per cabin even though some cabins can
accommodate three or more passengers.
(2) CCL includes the Carnival Glory, Princess includes the Island Princess,
and Holland America includes the Oosterdam, which were all delivered
after May 31, 2003. In addition, included within the CCL capacity is the
1,486-passenger Jubilee, which we expect to transfer to P&O Cruises
Australia in the fall of 2004.
(3) One ship, the Pacific Princess, which is only included in Princess'
capacity, operates on a split deployment between Princess and P&O Cruises
Australia.
(4) Cunard includes the Caronia, which was sold in May 2003 and is chartered
back for use by Cunard until November 2004.
(5) A'ROSA also operates our three river cruise vessels on Europe's Danube
River, which have a total passenger capacity of 600 lower berths.
(6) Holland America and Princess also operate the leading tour companies in
Alaska and the Canadian Yukon, Holland America Tours and Princess Tours,
respectively, that primarily complement their cruise operations.
Basis of Presentation
The accompanying consolidated balance sheet at May 31, 2003 and the
consolidated statements of operations and cash flows for the six and three
months ended May 31, 2003 and 2002 are unaudited and, in the opinion of our
management, contain all adjustments, consisting of only normal recurring
adjustments, necessary for a fair presentation. Our consolidated financial
statements include the consolidated results of operations of Carnival
Corporation for the entire six and three month periods and Carnival plc's
consolidated results of operations have been included since April 17, 2003
(see Note 2). Our interim consolidated financial statements should be read in
conjunction with the audited consolidated financial statements and the
related notes included in the Carnival Corporation 2002 Annual Report on Form
10-K and the Carnival plc 2002 Annual Report on Form 20-F.
Our operations are seasonal and results for interim periods are not
necessarily indicative of the results for the entire year. Reclassifications
have been made to prior period amounts to conform to the current period
presentation.
NOTE 2 - Dual Listed Company ("DLC") Transaction
On April 17, 2003, Carnival Corporation and Carnival plc completed a DLC
transaction, which implemented Carnival Corporation's and Carnival plc's DLC
structure. The DLC transaction combined the businesses of Carnival
Corporation and Carnival plc through a number of contracts and amendments to
Carnival Corporation's articles of incorporation and by-laws and to Carnival
plc's memorandum of association and articles of association. The two
companies have retained their separate legal identities, and each company's
shares continue to be publicly traded on the New York Stock Exchange for
Carnival Corporation and the London Stock Exchange for Carnival plc.
However, both companies operate as if they were a single economic enterprise.
The contracts governing the DLC structure provide that Carnival Corporation
and Carnival plc each continue to have separate boards of directors, but the
boards and senior executive management of both companies are identical. The
amendments to the constituent documents of each of the companies also provide
that, on most matters, the holders of the common equity of both companies
effectively vote as a single body. On specified matters where the interests
of Carnival Corporation's shareholders may differ from the interests of
Carnival plc's shareholders (a "class rights action"), each shareholder body
will vote separately as a class, such as transactions primarily designed to
amend or unwind the DLC structure. Generally, no class rights action will be
implemented unless approved by both shareholder bodies.
Upon the closing of the DLC transaction, Carnival Corporation and
Carnival plc also executed the Equalization and Governance Agreement, which
provides for the equalization of dividends and liquidation distributions
based on an equalization ratio and contains provisions relating to the
governance of the DLC structure. Because the current equalization ratio is 1
to 1, one Carnival plc ordinary share is entitled to the same distributions,
subject to the terms of the Equalization and Governance Agreement, as one
share of Carnival Corporation common stock. In a liquidation of either
company or both companies, if the hypothetical potential per share
liquidation distributions to each company's shareholders are not equivalent,
taking into account the relative value of the two companies' assets and the
indebtedness of each company, to the extent that one company has greater net
assets so that any liquidation distribution to its shareholders would not be
equivalent on a per share basis, the company with the ability to make a
higher net distribution is required to make a payment to the other company to
equalize the possible net distribution to shareholders.
At the closing of the DLC transaction, Carnival plc and Carnival
Corporation also executed deeds of guarantee. Under the terms of Carnival
Corporation's deed of guarantee, Carnival Corporation has agreed to guarantee
all indebtedness and certain other monetary obligations of Carnival plc that
are incurred under agreements entered into on or after the closing date of
the DLC transaction. In addition, Carnival Corporation and Carnival plc may
agree that the Carnival Corporation deed of guarantee may apply to any other
indebtedness or obligations of Carnival plc, whether incurred before or after
the closing of the DLC transaction. The terms of Carnival plc's deed of
guarantee are identical to those of Carnival Corporation's. Each deed of
guarantee provides that the creditors to whom the obligations are owed are
intended third party beneficiaries of such deed of guarantee.
The deeds of guarantee are governed and construed in accordance with the
laws of the Isle of Man. Subject to the terms of the guarantees, the holders
of indebtedness and other obligations that are subject to the guarantees will
have recourse to both Carnival plc and Carnival Corporation though a Carnival
plc creditor must first make written demand on Carnival plc and a Carnival
Corporation creditor on Carnival Corporation. Once the written demand is
made by letter or other form of notice, the holders of indebtedness or other
obligations may immediately commence an action against the relevant
guarantor. There is no requirement under the deeds of guarantee to obtain a
judgment, take other enforcement actions or wait any period of time prior to
taking steps against the relevant guarantor. All actions or proceedings
arising out of or in connection with the deeds of guarantee must be
exclusively brought in courts in England.
Under the terms of the DLC transaction documents, Carnival Corporation
and Carnival plc are permitted to transfer assets between the companies, make
loans or investments in each other and otherwise enter into intercompany
transactions. The companies expect to enter into such transactions in the
future to take advantage of the flexibility provided by the DLC structure and
to operate both companies as a single unified economic enterprise in the most
effective manner. In addition, under the terms of the Equalization and
Governance Agreement and the deeds of guarantee, the cash flow and assets of
one company are required to be used to pay the obligations of the other
company, if necessary. Given the DLC structure as described above, we
believe that providing separate financial statements for each of Carnival
Corporation and Carnival plc would not present a true and fair view of the
economic realities of their operations. Accordingly, separate financial
statements for both Carnival Corporation and Carnival plc have not been
presented.
Simultaneously with the completion of the DLC transaction, a partial
share offer ("PSO") for 20% of Carnival plc's shares was made and accepted,
which enabled 20% of Carnival plc shares to be exchanged for 41.7 million
Carnival Corporation shares. The 4l.7 million shares of Carnival plc held by
Carnival Corporation as a result of the PSO, which cost $1.05 billion, are
being accounted for as treasury stock in the accompanying balance sheet. The
holders of Carnival Corporation shares, including the new shareholders who
exchanged their Carnival plc shares for Carnival Corporation shares under the
PSO, now own an economic interest equal to approximately 79%, and holders of
Carnival plc shares now own an economic interest equal to approximately 21%,
of Carnival Corporation & plc.
The management of Carnival Corporation and Carnival plc ultimately
agreed to enter into the DLC transaction because, among other things, the
creation of Carnival Corporation & plc would result in a company with
complementary well-known brands operating globally with enhanced growth
opportunities, benefits of sharing best practices and generating cost
savings, increased financial flexibility and access to capital markets and a
DLC structure, which allows for continued participation in the global cruise
industry for Carnival plc's shareholders who wish to continue to hold shares
in a United Kingdom ("UK")-listed company.
Carnival plc was the third largest cruise company in the world and
operated many well-known global brands with leading positions in the UK,
Germany, Australia and the United States ("U.S."). The combination of
Carnival Corporation with Carnival plc under the DLC structure has been
accounted for under U.S. generally accepted accounting principles ("GAAP") as
an acquisition of Carnival plc by Carnival Corporation pursuant to SFAS No.
141, "Business Combinations." The purchase price of $25.31 per share was
based upon the average of the quoted closing market price of Carnival
Corporation's shares beginning two days before and ending two days after
January 8, 2003, the date the Carnival plc board agreed to enter into the DLC
transaction. The number of additional shares effectively issued in the
combined entity for purchase accounting purposes was 209.6 million. In
addition, Carnival Corporation has estimated that it will incur approximately
$60 million of direct acquisition costs, which have been included in the
purchase price. The aggregate purchase price of $5.37 billion, computed as
described above, has been preliminarily allocated to the assets and
liabilities of Carnival plc as follows (in millions):
Ships $5,159
Ships under construction 406
Other tangible assets 856
Goodwill 2,912
Debt (2,930)
Other liabilities (1,038)
$5,365
We have engaged an appraisal firm who has not yet completed its
valuation work, which is being performed to assist us in establishing the
fair value of Carnival plc's cruise ships and amortizable and non-amortizable
intangible assets and liabilities. However, based on the information
currently available, it is not expected that the amount of separately
identifiable amortizable intangible assets will be material to the Carnival
Corporation & plc financial statements. Prior to the completion of this
valuation work, we have assumed that the fair values of ships in use and
under construction are the same as their net book value at the date of
acquisition. However, as noted above, we are having an appraisal performed
of these cruise ships, and we believe it is possible that the fair value of
some of these ships could be less than their carrying value, thus reducing
depreciation expense. No assurance can be given that the preliminary fair
value estimates noted above will not be materially changed as a result of
these valuations or other additional information being obtained and,
accordingly, the amounts preliminarily allocated to Carnival plc's opening
balance sheet assets and liabilities may change, which would also change the
pro forma information provided below.
The information presented below gives pro forma effect to the DLC
transaction between Carnival Corporation and Carnival plc. Management has
prepared the pro forma information based upon the companies' historical
financial information and, accordingly, the above information should be read
in conjunction with the companies' historical financial statements, as well
as the pro forma information included in the companies' joint Current Reports
on Form 8-K, dated May 29, 2003 and June 25, 2003.
As noted above, the DLC transaction has been accounted for as an
acquisition of Carnival plc by Carnival Corporation, using the purchase
method of accounting. Carnival plc's accounting policies have been conformed
to Carnival Corporation's policies. Carnival plc's reporting period has been
changed to the Carnival Corporation reporting period and the information
presented below covers the same periods of time for both companies.
The pro forma information presented below has been prepared as if the
DLC transaction had occurred on December 1, 2001, rather than April 17, 2003,
and has not been adjusted to reflect any net transaction benefits. In
addition, the pro forma information does not purport to represent what the
results of operations actually could have been if the DLC transaction had
occurred on December 1, 2001 or what those results will be for any future
periods.
Six months Three months
ended May 31, ended May 31,
2003 2002 2003 2002
(in millions, except earnings per share and shares)
Pro forma revenues $3,241 $2,902 $1,624 $1,513
Pro forma net income (a)(b)(c)(d) $ 221 $ 396 $ 98 $ 242
Pro forma earnings per share
Basic $ 0.28 $ 0.50 $ 0.12 $ 0.31
Diluted $ 0.28 $ 0.49 $ 0.12 $ 0.30
Pro forma weighted-average
shares outstanding
Basic 795 795 796 795
Diluted 799 800 799 800
(a) In accordance with SFAS No. 141, the above pro forma net income includes
Carnival plc's costs related to its terminated Royal Caribbean
transaction and the completion of the DLC transaction with Carnival
Corporation, which were expensed by Carnival plc prior to April 17, 2003.
If the above pro forma net income excluded these transaction costs, as
required by Article 11 of the Securities and Exchange Commission
Regulation S-X, then the pro forma net income would have been $266
million and $407 million for the six months ended May 31, 2003 and 2002,
respectively, and $122 million and $250 million for the three months
ended May 31, 2003 and 2002, respectively.
(b) The six and three months ended May 31, 2003 includes expenses totalling
approximately $20 million and $13 million, respectively, due to the major
marketing, promotion and other expenses incurred by Carnival plc's
introduction into UK service of four vessels: the Oceana; Minerva II;
Ocean Village; and Adonia.
(c) Carnival plc is expected to receive insurance company and/or shipyard
payments related to the Diamond Princess fire and the Island Princess
delayed delivery. The present value of these payments, which
approximates $99 million, has been recorded on the balance sheet of
Carnival Corporation & plc as a Carnival plc fair value acquisition
adjustment.
(d) The excess of purchase price over net assets acquired from Carnival
plc through the DLC transaction is primarily estimated to include the
value attributed to Carnival plc's trademarks, brand names and goodwill.
Management believes that these trademarks and brand names have indefinite
lives and, accordingly, based on SFAS No. 142, "Goodwill and Other
Intangible Assets," no adjustment for pro forma amortization is required.
It is not possible at this time to reasonably estimate the separate
amounts attributable to identifiable intangible assets or goodwill since
the measurement of these assets requires the expertise of the appraisal
firm who has not yet completed its valuation work. Accordingly,
the entire amount of the excess of the purchase price has currently
been allocated to goodwill in the accompanying May 31, 2003 balance
sheet, but is expected to be allocated between goodwill and other
identifiable intangible assets such as brand names and trademarks,
subsequent to the completion of the DLC transaction based primarily on
the appraisal firm's valuation. However, since it is expected that the
material intangibles that will be identified and valued will have
indefinite lives, no material impact on the statement of operations is
expected as a result of this presentation on the Carnival Corporation &
plc balance sheet, as neither goodwill nor these indefinite lived
intangibles are allowed to be amortized under SFAS No. 141.
Computershare Investor Services plc ("Computershare") acted as the UK
Receiving Agent and Escrow Agent for Carnival Corporation in connection with
the PSO to shareholders of Carnival plc. Computershare wrongfully rejected
the tender of over 53 million Carnival plc shares. Chase Nominees Limited
tendered the rejected shares on behalf of these Carnival plc shareholders.
On July 3, 2003, we entered into a cash settlement agreement with Chase
Nominees Limited, on behalf of itself and the affected Carnival plc
shareholders, to settle this dispute. Our nonoperating expenses for the three
months ended May 31, 2003 included estimated expenses of $16 million related
to this dispute and other costs associated with the DLC transaction.
NOTE 3 - Stock-Based Compensation
Pursuant to Statement of Financial Accounting Standard ("SFAS") No. 123,
"Accounting for Stock-Based Compensation," as amended by SFAS No. 148, we
elected to use the intrinsic value method of accounting for our employee and
director stock-based compensation awards. Accordingly, we have not
recognized compensation expense for our noncompensatory employee and director
stock option awards. As recommended by SFAS No. 123, the fair values of
options were estimated using the Black-Scholes option-pricing model. Our
adjusted net income and adjusted earnings per share had we elected to adopt
the fair value approach of SFAS No. 123, which charges earnings for the
estimated fair value of stock options, would have been as follows (in
thousands, except per share amounts):
Six Months Three months
ended May 31, ended May 31,
2003 2002 2003 2002
Net income, as reported $254,674 $323,841 $127,795 $194,201
Stock-based compensation
expense included in
net income, as reported 2,719 2,577 1,431 1,337
Total stock-based compensation
expense determined under
the fair value-based
method for all awards (17,332) (14,990) (9,032) (7,543)
Adjusted net income $240,061 $311,428 $120,194 $187,995
Earnings per share
Basic
As reported $ 0.40 $ 0.55 $ 0.19 $ 0.33
Adjusted $ 0.38 $ 0.53 $ 0.17 $ 0.32
Diluted
As reported $ 0.40 $ 0.55 $ 0.19 $ 0.33
Adjusted $ 0.38 $ 0.53 $ 0.17 $ 0.32
The Black-Scholes option-pricing model was developed for use in
estimating the fair value of traded options that have no vesting or trading
restrictions and are fully transferable. In addition, option-pricing models
require the input of subjective assumptions, including expected stock price
volatility. Because our options have characteristics different from those of
traded options, the existing models do not necessarily provide a reliable
single measure of the fair value of our options.
NOTE 4 - Property and Equipment
Property and equipment consisted of the following (in thousands):
May 31, November 30,
2003 2002
Ships (a) $16,715,131 $10,665,958
Ships under construction 1,234,755 712,447
17,949,886 11,378,405
Land, buildings and improvements,
and port facilities 467,048 314,448
Transportation equipment and other 549,209 409,310
Total property and equipment 18,966,143 12,102,163
Less accumulated depreciation and
amortization (2,257,531) (1,986,759)
$16,708,612 $10,115,404
(a) At May 31, 2003, 11 ships with an aggregate net book value of $3.04
billion were pledged as collateral pursuant to mortgages related to $1.48
billion of debt and a $469 million contingent obligation (see Notes 5
and 7).
At May 31, 2003, ship costs included a preliminarily estimated fair
value of approximately $5.16 billion for Carnival plc ships, which were
acquired on April 17, 2003. As previously noted, this estimate will be
adjusted to a final estimated fair value when the appraisals of these cruise
ships are completed (see Note 2).
Capitalized interest, primarily on our ships under construction,
amounted to $22 million and $16 million for the six months ended May 31, 2003
and 2002, respectively, and $13 million and $8 million for the three months
ended May 31, 2003 and 2002, respectively.
NOTE 5 - Debt
Short-term borrowings consisted of unsecured fixed rate notes, bearing
interest at libor plus 0.15% (1.48% weighted-average interest rate at May 31,
2003), payable to a bank through August 2003.
Long-term debt consisted of the following (in thousands):
May 31, November 30,
2003(a) 2002(a)
Secured
Floating rate notes, collateralized by ships, bearing
interest at rates ranging from libor plus 1.25% to
libor plus 1.33% (2.63% to 2.69% at May 31, 2003),
due through 2016 $ 602,112
Euro floating rate notes, collateralized by ships,
bearing interest at rates ranging from euribor plus
0.5% to euribor plus 1.37% (3.0% to 3.85% at May 31,
2003 and 4.0% at November 30, 2002), due through
2016 565,684 $ 118,727
Euro fixed rate note, collateralized by one ship,
bearing interest at 4.74%, due through
2012 (b) 198,574
Capitalized lease obligations, collateralized by ships,
implicit interest at 3.66%, due through 2005 116,251
Other 20,401
1,503,022 118,727
Unsecured
Fixed rate notes, bearing interest at rates ranging
from 4.4% to 8.2%, due through 2028 (c)(d) 1,740,952 856,680
Euro floating rate notes, bearing interest
at rates ranging from euribor plus 0.35% to euribor
plus 0.47% (3.2% to 3.4% and 3.8% to 4.0% at May 31,
2003 and November 30, 2002, respectively), due
through 2006 (e) 682,730 570,187
Euro revolving credit facilities, bearing interest
at euribor plus 0.53% and euro libor plus 0.98%
(3.0% to 3.6% and 3.6% at May 31, 2003 and
November 30, 2002, respectively), due through 2006 607,245 110,190
Sterling fixed rate bonds, bearing interest
at 6.4%, due in 2012 (d) 343,393
Euro fixed rate notes, bearing interest at 5.57%,
due in 2006 355,965 297,195
Revolving credit facilities, bearing interest at rates
ranging from libor plus 0.17% to libor plus 0.98%
(2.3% at May 31, 2003 and 1.6% at November 30, 2002),
due through 2006 16,500 50,000
Other 48,956 44,468
Convertible notes, bearing interest at 2%,
due in 2021, with first put option in 2005 600,000 600,000
Zero-coupon convertible notes, net of
discount, with a face value of $1.05 billion,
due in 2021, with first put option in 2006 530,804 520,944
Convertible notes, net of discount, with a
face value of $889 million, due in 2033,
with first put option in 2008 (f) 575,076
5,501,621 3,049,664
7,004,643 3,168,391
Less portion due within one year (296,802) (154,633)
$6,707,841 $3,013,758
(a) All borrowings are in U.S. dollars unless otherwise noted. Euro and
sterling denominated notes have been translated to U.S. dollars at the
period-end exchange rates.
(b) We have entered into interest rate swap agreements, which mature through
2012, and convert this fixed rate debt to floating rate debt. In
addition, we have entered into foreign currency swap transactions, which
have effectively converted this euro debt into sterling debt.
(c) We have entered into interest rate swap agreements, which mature through
2010, and effectively converted $594 million ($225 million at November
30, 2002) of this fixed rate debt to floating rate debt. In addition, we
have entered into foreign currency swap transactions, which have
effectively converted $225 million of this dollar debt into sterling
debt.
(d) At May 31, 2003, $1.23 billion of Carnival plc's debt was unconditionally
guaranteed by P&O Princess Cruises International Limited ("POPCIL"), a
100% direct wholly-owned subsidiary of Carnival plc. POPCIL's 2002
consolidated financial statements are included in its Registration
Statement on Form F-3, filed with the Securities and Exchange Commission
on June 19, 2003. On June 19, 2003, POPCIL, Carnival Corporation and
Carnival plc executed a deed of guarantee under which POPCIL agreed to
guarantee all indebtedness and related obligations of both Carnival
Corporation and Carnival plc incurred under agreements entered into after
April 17, 2003, the date the DLC transaction was completed. Under this
deed of guarantee, POPCIL also agreed to guarantee all other indebtedness
and related obligations that Carnival Corporation and Carnival plc agreed
to guarantee under their deeds of guarantee. Carnival Corporation
expects to guarantee all or a substantial portion of the existing
indebtedness of Carnival plc, subject to some amendments being made to
the terms of that indebtedness.
(e) Euro floating rate notes in the amount of $333 million ($278 million
at November 30, 2002) have been swapped into euro fixed rate notes
through 2005.
(f) These convertible notes, issued on April 29, 2003, are convertible into
a maximum of 20.9 million shares of Carnival Corporation common stock and
are guaranteed by Carnival plc and POPCIL. These notes are convertible
at a conversion price of $53.11 per share, subject to adjustment, during
any fiscal quarter between August 31, 2003 through April 29, 2008, for
which the closing price of the Carnival Corporation common stock is
greater than $63.73 per share, for a defined duration of time.
Thereafter, the $63.73 per share conversion trigger price increases each
quarter at an annual rate of 1.75%, until maturity. In addition, holders
may also surrender the notes for conversion if they have been called for
redemption or, for other specified occurrences, including the credit
rating assigned to the notes being Baa3 or lower by Moody's Investors
Service and BBB- or lower by Standard & Poor's Rating Services, as well
as certain corporate transactions. The conditions for conversion of
these notes were not met during the second fiscal quarter of 2003. Upon
conversion, redemption or repurchase of the above notes, we may choose to
deliver Carnival Corporation common stock, cash or a combination of cash
and Carnival Corporation common stock with a total value equal to the
value of the consideration otherwise deliverable. If these convertible
notes were to be put back to us, we expect to settle them for cash and,
accordingly, they are not included in our diluted earnings per share
common stock calculations. However, no assurance can be given that we
will have sufficient liquidity to make such cash payments. See Note 11.
These notes bear interest at 1.132% per year on the principal amount at
maturity, payable in cash semi-annually in arrears, commencing October
29, 2003 through April 29, 2008. Effective April 30, 2008, these notes
no longer require a cash interest payment, but interest will accrete on
the principal amount of the notes at a semi-annual rate of 1.75% per
year.
At May 31, 2003, we were in compliance with all of our debt covenants.
At May 31, 2003, the scheduled annual maturities of our long-term debt
was as follows (in thousands):
Fiscal
Remaining six months of 2003 $ 206,898
2004 254,279
2005 1,625,858(a)
2006 1,645,602(a)
2007 443,023
Thereafter 2,828,983(a)
$7,004,643
(a) Includes $600 million of our 2% convertible notes in 2005, $531 million
of our zero-coupon convertible notes in 2006, and $575 million of our
convertible notes in 2008, based in each case on the date of the
noteholders' first put option.
NOTE 6 - Commitments
Ship Commitments
A description of our ships under contract for construction at May 31,
2003 was as follows (in millions, except passenger capacity data):
Expected Estimated
Service Passenger Total
Brand and Ship Date(a) Shipyard Capacity Cost(b)
CCL
Carnival Glory 7/03 Fincantieri(c) 2,974 $ 510
Carnival Miracle 3/04 Masa-Yards (d) 2,124 375
Carnival Valor 12/04 Fincantieri(d) 2,974 510
Carnival Liberty 8/05 Fincantieri 2,974 460
Total CCL 11,046 1,855
Princess
Island Princess 7/03 Chantiers de
l'Atlantique(c)(d)(e) 1,970 480
Diamond Princess 3/04 Mitsubishi (e) 2,670 535
Caribbean Princess 4/04 Fincantieri (d) 3,110 500
Sapphire Princess 6/04 Mitsubishi (e) 2,670 535
Newbuild 6/06 Fincantieri 3,110 500
Total Princess 13,530 2,550(g)
Holland America
Oosterdam 8/03 Fincantieri(c)(d) 1,848 410
Westerdam 5/04 Fincantieri(d) 1,848 410
Newbuild 2/06 Fincantieri(d) 1,848 410
Total Holland America 5,544 1,230
Costa
Costa Fortuna 12/03 Fincantieri(f) 2,720 510
Costa Magica 11/04 Fincantieri(f) 2,720 545
Total Costa 5,440 1,055
Cunard
Queen Mary 2 1/04 Chantiers de
l'Atlantique(d) 2,620 780
Queen Victoria 4/05 Fincantieri (d) 1,968 410
Total Cunard 4,588 1,190
A'ROSA (river boat)
Newbuild 4/04 Meyer Werft 200 20
Total 40,348 $7,900
(a) The expected service date is the date the ship is currently expected to
begin its first revenue generating cruise.
(b) Estimated total cost of the completed ship includes the contract price
with the shipyard, design and engineering fees, capitalized interest,
construction oversight costs and various owner supplied items.
(c) The Island Princess, Carnival Glory and Oosterdam were delivered to us by
the shipyard on June 18, June 27 and July 11, 2003, respectively.
(d) These construction contracts are denominated in euros and have been fixed
into U.S. dollars through the utilization of forward foreign currency
contracts.
(e) At May 31, 2003, we had arranged committed financing for $1.06
billion to fund the delivery payments for these ships.
(f) These construction contracts are denominated in euros, which is Costa's
functional currency. The estimated total costs have been translated into
U.S. dollars using the May 31, 2003 exchange rate.
(g) The estimated fair value of these contracts are being evaluated by an
appraisal firm as part of our accounting for the acquisition of
Carnival plc and, accordingly, we believe the amounts that ultimately are
recorded on our balance sheet for these ships may be lower than their
estimated total cost (see Note 2).
In connection with our ships under contract for construction, we have
paid $1.2 billion through May 31, 2003 and anticipate paying $4.2 billion
during the twelve months ending May 31, 2004 and $2.5 billion thereafter.
NOTE 7 - Contingencies
Litigation
In 2002, three actions (collectively, the "Facsimile Complaints") were
filed against Carnival Corporation on behalf of purported classes of persons
who received unsolicited advertisements via facsimile, alleging that Carnival
Corporation and other defendants distributed unsolicited advertisements via
facsimile in contravention of the U.S. Telephone Consumer Protection Act.
The plaintiffs seek to enjoin the sending of unsolicited facsimile
advertisements and statutory damages. The advertisements referred to in the
Facsimile Complaints were not sent by Carnival Corporation, but rather were
distributed by a professional faxing company at the behest of travel agencies
that referenced a CCL product. We do not advertise directly to the traveling
public through the use of facsimile transmission. The ultimate outcomes of
the pending Facsimile Complaints cannot be determined at this time. We
believe that we have meritorious defenses to these claims and, accordingly,
we intend to vigorously defend against these actions.
In February 2001, Holland America Line-USA, Inc. ("HAL-USA"), a Carnival
Corporation wholly-owned subsidiary, received a grand jury subpoena
requesting that it produce documents and records relating to the air
emissions from Holland America ships in Alaska. HAL-USA responded to the
subpoena. The ultimate outcome of this matter cannot be determined at this
time.
On August 17, 2002, an incident occurred in Juneau, Alaska onboard
Holland America's Ryndam involving a wastewater discharge from the ship. As
a result of this incident, various Ryndam ship officers have received grand
jury subpoenas from the Office of the U.S. Attorney in Anchorage, Alaska
requesting that they appear before a grand jury. One subpoena also requested
the production of Holland America documents, which Holland America has
produced. Holland America is also complying with a recent subpoena for
additional documents. If the investigation results in charges being filed, a
judgment could include, among other forms of relief, fines and debarment from
federal contracting, which would prohibit operations in Glacier Bay National
Park and Preserve during the period of debarment. The State of Alaska is
separately investigating this incident. The ultimate outcome of these
matters cannot be determined at this time. However, if Holland America were
to lose its Glacier Bay permits we would not expect the impact on our
financial statements to be material to us since we believe there are
additional attractive alternative destinations in Alaska that can be
substituted for Glacier Bay.
Costa has instituted arbitration proceedings in Italy to confirm the
validity of its decision not to deliver its ship, the Costa Classica, to the
shipyard of Cammell Laird Holdings PLC ("Cammell Laird") under a 79 million
euro denominated contract for the conversion and lengthening of the ship.
Costa has also given notice of termination of the contract. It is now
expected that the arbitration tribunal's decision will be made in mid-2004 at
the earliest. In the event that an award is given in favor of Cammell Laird,
the amount of damages, which Costa will have to pay, if any, is not currently
determinable. The ultimate outcome of this matter cannot be determined at
this time.
On April 23, 2003, Festival Crociere S.p.A. commenced an action against
the European Commission (the "Commission") in the Court of First Instance of
the European Communities in Luxembourg seeking to annul the Commission's
antitrust approval of the DLC transaction (the "Festival Action"). We have
recently sought leave to intervene in the Festival Action and intend to
contest such action vigorously. A successful third party challenge of an
unconditional Commission clearance decision would be unprecedented, and based
on a review of the law and the factual circumstances of the DLC transaction,
as well as the Commission's approval decision in relation to the DLC
transaction, we believe that the Festival Action will not have a material
adverse effect on the companies or the DLC transaction. However, the
ultimate outcome of this matter cannot be determined at this time.
In the normal course of our business, various other claims and lawsuits
have been filed or are pending against us. Most of these claims and lawsuits
are covered by insurance and, accordingly, the maximum amount of our
liability is typically limited to our self-insurance retention levels.
However, the ultimate outcome of these claims and lawsuits which are not
covered by insurance cannot be determined at this time.
Operating Leases
At May 31, 2003, minimum annual rentals for our operating leases, with
initial or remaining terms in excess of one year were approximately as
follows (in thousands):
Fiscal
Remaining six months of 2003 $ 18,000
2004 33,000
2005 31,000
2006 21,000
2007 16,000
Thereafter 82,000
$201,000
Port Facilities and Other
At May 31, 2003 we had commitments through 2027, with initial or
remaining terms in excess of one year, to pay minimum amounts for our annual
usage of port facilities and other contractual commitments approximately as
follows (in thousands):
Fiscal
Remaining six months of 2003 $ 29,000
2004 46,000
2005 32,000
2006 33,000
2007 34,000
Thereafter 185,000
$359,000
Contingent Obligations
At May 31, 2003, we had contingent obligations totaling $1.06 billion to
participants in lease out and lease back type transactions for three of our
ships. At the inception of the leases, the entire amount of the contingent
obligations was paid by us to major financial institutions to enable them to
directly pay these obligations. Accordingly, these obligations were
considered extinguished, and neither funds nor the contingent obligations
have been included on our balance sheets. We would only be required to make
any payments under these lease contingent obligations in the remote event of
nonperformance by these financial institutions, all of which have long-term
credit ratings of AAA or AA. In addition, we obtained a direct guarantee from
another AAA rated financial institution for $291 million of the above noted
contingent obligations, thereby further reducing the already remote exposure
to this portion of the contingent obligations. If the major financial
institutions' credit ratings fall below AA-, we would be required to move a
majority of the funds from these financial institutions to other highly-rated
financial institutions. If Carnival Corporation's credit rating falls below
BBB, we would be required to provide a standby letter of credit for $87
million, or alternatively provide mortgages in the aggregate amount of $87
million on two of Carnival Corporation's ships.
In the unlikely event that we were to terminate the three lease
agreements early or default on our obligations, we would, as of May 31, 2003
have to pay a total of $168 million in stipulated damages. As of May 31,
2003, $177 million of standby letters of credit have been issued by a major
financial institution in order to provide further security for the payment of
these contingent stipulated damages. Between 2017 and 2022, we have the right
to exercise options that would terminate these transactions at no cost to us.
As a result of entering into these three transactions we received $67
million, which was recorded as deferred income on our balance sheets and is
being amortized to nonoperating income through 2022. In the event we were to
default under our $1.4 billion revolving credit facility, we would be
required to post cash collateral to support the stipulated damages standby
letters of credit.
Other contingent obligations
Some of the debt agreements that we enter into include indemnification
provisions that obligate us to make payments to the counterparty if certain
events occur. These contingencies generally relate to changes in taxes,
increased lender capital costs and other similar costs. The indemnification
clauses are often standard contractual terms and were entered into in the
normal course of business. There are no stated or notional amounts included
in the indemnification clauses and we are not able to estimate the maximum
potential amount of future payments, if any, under these indemnification
clauses. We have not been required to make any payments under such
indemnification clauses in the past and, under current circumstances, we do
not believe a request for indemnification is probable.
We have provided counter-indemnities of approximately $335 million
relating to bonds provided by third parties in support of our obligations
arising in the normal course of business. Generally, these bonds are
required by travel industry regulators in the various jurisdictions in which
we operate.
NOTE 8 - Shareholders' Equity
Carnival Corporation's Articles of Incorporation and Carnival plc's
Memorandum and Articles of Association authorize their boards of directors,
at their discretion, to issue up to 40 million shares and 100,000 shares of
preferred stock, respectively. At May 31, 2003 and November 30, 2002, no
Carnival Corporation nor Carnival plc preferred stock had been issued.
During the six months ended May 31, 2003 and 2002, Carnival Corporation
declared quarterly cash dividends of $0.105 per share in each quarter, or an
aggregate of $123 million for each six month period to its stockholders. In
addition, Carnival plc also declared dividends of $.105 per share in the 2003
second quarter, or an aggregate of $18 million, which was paid in June 2003.
NOTE 9 - Comprehensive Income
Comprehensive income was as follows (in thousands):
Six Months Three Months
Ended May 31, Ended May 31,
2003 2002 2003 2002
Net income $254,674 $323,841 $127,795 $194,201
Foreign currency translation
adjustment, net 163,723 24,745 109,165 32,901
Unrealized gains on
marketable securities, net 2,492 6,280 3,629 3,847
Changes related to cash flow
derivative hedges (8,578) 4,571 (6,484) (8)
Total comprehensive income $412,311 $359,437 $234,105 $230,941
NOTE 10 - Segment Information
Our cruise segment included thirteen cruise brands since April 17, 2003,
and six Carnival Corporation cruise brands from December 1, 2001 to April 16,
2003, which have been aggregated as a single reportable segment based on the
similarity of their economic and other characteristics. Cruise revenues are
comprised of sales of passenger cruise tickets, and in some cases the sale of
air transportation to and from our cruise ships. The cruise ticket price
includes the overall cruise vacation experience, including accommodations,
meals, entertainment and many onboard activities. Cruise revenues also
include the sale of goods and/or services on board our cruise ships, which
are made available to our passengers to enhance their cruise experience,
while generating additional revenues for us. These revenues include bar and
beverage sales, casino gaming, shore excursions, gift shop and spa sales,
photo and art sales and pre- and post cruise land packages. These onboard
activities are either performed directly by us or by independent
concessionaires, from which we collect a percentage of their revenues. The
other segment represents the transportation, hotel and tour operations of
Holland America Tours, the hotel and transportation operations of Princess
Tours and the business to business travel agency operations of P&O Travel
Ltd., the latter two since completion of the DLC transaction on April 17,
2003.
Selected segment information was as follows (in thousands):
Six Months Ended May 31,
2003(a) 2002(a)(b)
Operating Operating
income income
Revenues (loss) Revenues (loss)
Cruise $2,336,532 $321,389 $1,869,358 $386,602
Other 41,983 (21,237) 33,495 (20,379)
Intersegment elimination (12,794) (6,423)
$2,365,721 $300,152 $1,896,430 $366,223
Three Months Ended May 31,
2003(a) 2002(a)(b)
Operating Operating
income income
Revenues (loss) Revenues (loss)
Cruise $1,309,057 $177,832 $968,096 $229,619
Other 36,464 (9,990) 27,788 (9,208)
Intersegment elimination (10,905) (5,985)
$1,334,616 $167,842 $989,899 $220,411
(a) Cruise revenues included billings to Holland America Tours for the cruise
portion of a tour, when a cruise is sold as part of a tour package. In
addition, other revenues included billings by Princess Tours for the land
portion of a tour, when a tour is sold as part of a cruise package, and
billings by Holland America Tours and Princess Tours to some of our
cruise brands for providing port hospitality services to cruise
passengers. These intersegment billings are eliminated from revenues in
the line "Intersegment elimination."
(b) Revenue amounts in 2002 have been reclassified to conform to the 2003
presentation. In addition, in 2003 we commenced allocating all corporate
expenses to our cruise segment. Accordingly, the 2002 presentation has
been restated to allocate the previously unallocated 2002 corporate
expenses to our cruise segment.
In addition, at May 31, 2003, substantially all of our assets are
included within the cruise segment.
NOTE 11 - Earnings Per Share
Our basic and diluted earnings per share were computed as follows (in
thousands, except per share data):
Six Months Ended Three Months Ended
May 31, May 31,
2003 2002 2003 2002
Net income $254,674 $323,841 $127,795 $194,201
Weighted-average common shares
outstanding 637,916 586,395 688,937 586,520
Dilutive effect of stock plans 1,033 1,799 1,181 2,259
Diluted weighted-average shares
outstanding 638,949 588,194 690,118 588,779
Basic earnings per share $0.40 $0.55 $0.19 $0.33
Diluted earnings per share $0.40 $0.55 $0.19 $0.33
The weighted-average common shares outstanding for the six and three
months ended May 31, 2003 includes the pro rata Carnival plc shares since
April 17, 2003. In addition, our diluted earnings per share computation for
the six and three months ended May 31, 2003 and 2002 did not include a
maximum of 53.6 million and 32.7 million shares of Carnival Corporation
common stock issuable upon conversion of all its convertible debt, as this
common stock was not issuable under the contingent conversion provisions of
these debt instruments.
If Carnival Corporation's common stock price reaches $33.77 per share
for a defined duration of time in the three months ended August 31, 2003,
then an additional 17.4 million shares of its stock, which is issuable under
its zero-coupon notes, will be considered outstanding for our diluted third
quarter earnings per share computation. In addition, we would increase third
quarter net income to eliminate the imputed interest expense we recorded on
these zero-coupon notes for the diluted third quarter earnings per share
computation.
NOTE 12 - Recent Accounting Pronouncements
In November 2002, Financial Accounting Standards Board Interpretation
("FIN") No. 45, "Guarantor's Accounting and Disclosure Requirements for
Guarantors, Including Indirect Guarantees of Indebtedness of Others" was
issued. FIN No. 45 requires that upon issuance of a guarantee, the guarantor
must recognize a liability for the fair value of the obligation it assumes
under the guarantee. Guarantors will also be required to meet expanded
disclosure obligations. The initial recognition and measurement provisions
of FIN No. 45 are effective for guarantees issued or modified after December
31, 2002. The disclosure requirements are effective for annual and interim
financial statements that end after December 15, 2002. We have adopted FIN
No. 45 in the first quarter of 2003.
In December 2002, SFAS No. 148, "Accounting for Stock-Based
Compensation-Transition and Disclosure-an amendment of SFAS No. 123" was
issued. SFAS No. 148 amends SFAS No. 123, "Accounting for Stock-Based
Compensation," to provide alternative methods of transition for a voluntary
change to the fair value based method of accounting for stock-based employee
and director compensation. In addition, this statement amends the disclosure
requirements of SFAS No. 123 to require prominent disclosures in both annual
and interim financial statements about the method of accounting for stock-
based employee compensation and the effect of the method used on reported
results. SFAS No. 148 is effective for annual financial statements for
fiscal years ending after December 15, 2002 and for interim financial
statements commencing after such date. We adopted the disclosure
requirements of SFAS No. 148 for our quarter ended May 31, 2003 (see Note 3).
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Cautionary Note Concerning Factors That May Affect Future Results
Some of the statements contained in this "Management's Discussion and
Analysis of Financial Condition and Results of Operations," and elsewhere in
this Quarterly Report on Form 10-Q are "forward-looking statements" that
involve risks, uncertainties and assumptions with respect to Carnival
Corporation & plc, including some statements concerning future results,
plans, goals and other events which have not yet occurred. These statements
are intended to qualify for the safe harbors from liability provided by
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. You can find many, but not all, of these statements by
looking for words like "will," "may," "believes," "expects," "anticipates,"
"forecast," "future," "intends," "plans," and "estimates" and for similar
expressions.
Because forward-looking statements, including those statements made in
our "Outlook for Remainder of Fiscal 2003" section and others which may
impact the forecasting of our earnings per share, net revenue yields, booking
levels, pricing, occupancy, operating, financing and tax costs, costs per
available lower berth day, estimates of ship depreciable lives and residual
values or business prospects, involve risks and uncertainties, there are many
factors that could cause Carnival Corporation & plc's actual results,
performance or achievements to differ materially from those expressed or
implied in this Quarterly Report on Form 10-Q. These factors include, but
are not limited to, the following:
- achievement of expected benefits from the DLC transaction;
- risks associated with the DLC structure;
- risks associated with the uncertainty of the tax status of the DLC
structure;
- general economic and business conditions, which may impact levels of
disposable income of consumers and the net revenue yields for our cruise
brands;
- conditions in the cruise and land-based vacation industries, including
competition from other cruise ship operators and providers of other
vacation alternatives and increases in capacity offered by cruise ship
and land-based vacation alternatives;
- the impact of operating internationally;
- the international political and economic climate, armed conflicts,
terrorist attacks, availability of air service and other world events
and adverse publicity and their impact on the demand for cruises;
- accidents and other incidents at sea affecting the health, safety,
security and vacation satisfaction of passengers;
- our ability to implement our shipbuilding programs and brand strategies
and to continue to expand our businesses worldwide;
- our ability to attract and retain shipboard crew and maintain good
relations with employee unions;
- our ability to obtain financing on terms that are favorable or
consistent with our expectations;
- the impact of changes in operating and financing costs, including
changes in foreign currency and interest rates and fuel, food, insurance
and security costs;
- changes in the tax, environmental, health, safety, security and other
regulatory regimes under which we operate;
- continued availability of attractive port destinations;
- our ability to successfully implement cost improvement plans and to
integrate business acquisitions;
- continuing financial viability of our travel agent distribution system;
- weather patterns or natural disasters; and
- the ability of a small group of shareholders effectively to control the
outcome of shareholder voting.
Forward-looking statements should not be relied upon as a prediction of
actual results. Subject to any continuing obligations under applicable law
or any relevant listing rules, we expressly disclaim any obligation to
disseminate, after the date of this Quarterly Report on Form 10-Q, any
updates or revisions to any such forward-looking statements to reflect any
change in expectations or events, conditions or circumstances on which any
such statements are based.
Results of Operations
We earn our cruise revenues primarily from the following:
- sales of passenger cruise tickets and, in some cases, the sale of
air transportation to and from our ships. The cruise ticket price
includes accommodations, meals, entertainment and many onboard
activities, and
- the sale of goods and/or services on board our ships, such as bar
and beverage sales, casino gaming, shore excursions, gift shop and
spa sales, photo and art sales and pre- and post cruise land
packages. These onboard activities are either performed directly
by us or by independent concessionaires, from which we collect a
percentage of their revenues.
We also derive revenues and incur costs from the operations of Holland
America Tours and Princess Tours. These operations' revenues are primarily
generated in conjunction with the Alaska cruise vacations provided by our
HAL, Princess and CCL cruise brands. In addition, we also derive revenues
and incur costs from our business to business travel agency, P&O Travel Ltd.,
which is also responsible for the purchasing of part of our air travel
requirements.
We currently do not accumulate and report all costs separately for our
onboard and other revenue producing activities because we view these costs
principally as part of the overall cruise services provided to our
passengers. We primarily use, and intend to continue to use, other metrics,
such as net revenue yields and per diems and net operating costs per
available lower berth day, to measure our cruise segment performance and help
manage our cruise business. However, we currently plan to commence
segregating our revenues and the directly related variable costs and expenses
associated with these revenue streams within our consolidated statements of
operations to be included in our Quarterly Report on Form 10-Q for the
quarter ending August 31, 2003.
For segment information related to our revenues and operating income
see Note 10 in the accompanying financial statements. Operations data
expressed as a percentage of total revenues and selected statistical
information were as follows:
Six Months Ended Three Months Ended
May 31, May 31,
2003 2002 2003 2002
Revenues 100% 100% 100% 100%
Costs and Expenses
Operating 61 56 61 54
Selling and administrative 16 15 16 15
Depreciation and amortization 10 10 10 9
Operating Income 13 19 13 22
Nonoperating Expense (2) (2) (3) (3)
Income Before Income Taxes 11 17 10 19
Income Tax Benefit, Net 1
Net Income 11% 17% 10% 20%
Selected Statistical Information
Passengers carried (in thousands) 2,140 1,603 1,218 831
Occupancy percentage (a) 100.3% 102.3% 98.5% 101.9%
(a) In accordance with cruise industry practice, occupancy percentage is
calculated using a denominator of two passengers per cabin even though
some cabins can accommodate three or more passengers. The percentages in
excess of 100% indicate that more than two passengers occupied some
cabins.
General
Our cruise and other operations experience varying degrees of
seasonality. Our revenue from the sale of passenger tickets for our cruise
operations is moderately seasonal, with the third quarter being the
strongest. The consolidation of Carnival plc is expected to cause our third
quarter results to be slightly more seasonal than we have recently
experienced. Revenues from our Holland America Tours and Princess Tours
units are highly seasonal, with a vast majority of those revenues generated
during the late spring and summer months in conjunction with the Alaska
cruise season.
The Carnival Corporation ALBD capacity, excluding Carnival plc, is
currently expected to increase by 19.5% and 18.0% in the third and fourth
quarters of fiscal 2003, respectively, as compared to the same periods of
fiscal 2002. Assuming that the DLC transaction was completed and Carnival
plc was consolidated for the full periods in both years, our pro forma ALBD
capacity is currently expected to increase 18.9% and 19.4% in the third and
fourth quarters of fiscal 2003, respectively, as compared to the same periods
of fiscal 2002.
The year over year percentage increase in Carnival Corporation's
standalone ALBD capacity, resulting primarily from new ships entering
service, for fiscal 2004, 2005 and 2006 is currently expected to be 17.5%,
9.6% and 5.0%, respectively. Our pro forma ALBD capacity increase for fiscal
2004, 2005 and 2006 is currently expected to be 18.4%, 9.2% and 4.3%,
respectively.
For a discussion of our critical accounting estimates, see
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," which is included in the Carnival Corporation 2002 Annual Report
on Form 10-K.
Outlook For Remainder of Fiscal 2003 ("2003")
On June 25, 2003, in our press release announcing second quarter 2003
earnings, we said that, our estimates for earnings per share for the third
quarter of 2003 are expected to be in a range of $0.83 to $0.87 and for the
fourth quarter in a range of $0.24 to $0.28. We also noted, that because the
booking curve remains very close to sailing, the forecasting of future
results is less predictable than in prior years.
Six Months Ended May 31, 2003 ("2003") Compared To Six Months Ended May 31,
2002 ("2002")
Revenues
Revenues increased $469 million, or 25%, in 2003 compared to 2002.
Cruise revenues increased $467 million, or 25%, to $2.34 billion in 2003 from
$1.87 billion in 2002. Approximately $283 million of our cruise revenue
increase was due to the consolidation of Carnival plc and $184 million was
due to increased revenues from Carnival Corporation's cruise brands. Carnival
Corporation's cruise revenue change resulted primarily from a 15.7% increase
in its standalone ALBD capacity in 2003 compared to 2002, offset by a decline
in its gross revenue yields (gross revenues per available lower berth day).
Within this Quarterly Report on Form 10-Q, we disclose certain pro forma
information, which assumes that the DLC transaction was completed and
Carnival plc was included in the full period for both years. Our pro forma
ALBD capacity increase was 16.0% in 2003 compared to 2002. Historical and
pro forma gross revenue yields declined 4.2% and 3.2%, respectively, in 2003
compared to 2002 for the same reasons as the decline in net revenue yields
discussed below, as well as the reduced number of passengers purchasing air
transportation from us. Historical net revenue yields and pro forma net
revenue yields declined 4.6% and 2.8%, respectively, in 2003 compared to 2002
largely because of lower cruise ticket prices and lower occupancy levels.
Our cruise revenue yields were adversely affected by consumer concerns about
travel during the period leading up to the war with Iraq and its eventual
outbreak, along with the uncertain world economy.
Onboard and other revenues, which are included in cruise revenues,
increased $123 million in 2003 to $529 million from $406 million in 2002.
Approximately $60 million of our onboard and other revenues increase was due
to the consolidation of Carnival plc and $63 million was due to increased
revenues from Carnival Corporation's cruise brands, primarily due to its
15.7% increase in ALBD capacity.
Costs and Expenses
Operating expenses increased $381 million, or 36%, in 2003 compared to
2002. Cruise operating expenses increased $380 million, or 37%, to $1.40
billion in 2003 from $1.03 billion in 2002. Approximately $187 million of
our cruise operating cost increase was due to the consolidation of Carnival
plc, and the remaining $193 million of the increase was from Carnival
Corporation. Carnival Corporation's increase was primarily a result of the
impact of the 15.7% increase in its ALBD capacity and higher fuel costs. Pro
forma operating expenses increased $335 million, or 20%, to $2.04 billion in
2003 from $1.70 billion in 2002 primarily as a result of the 16% increase in
ALBD capacity and higher fuel costs.
Selling and administrative expenses increased $96 million, or 33%, to
$389 million in 2003 from $295 million in 2002. Cruise selling and
administrative expenses increased $95 million, or 34%, to $373 million in
2003 from $279 million in 2002. Approximately $53 million of our increase
was due to the consolidation of Carnival plc and the remaining $42 million of
the increase was from Carnival Corporation, which was primarily due to the
15.7% increase in ALBD capacity and the front-loading of advertising expenses
into the first quarter of 2003. Pro forma selling and administrative
expenses increased $96 million, or 21%, to $552 million from $456 million in
2002, primarily as a result of the 16% increase in ALBD capacity, as well as
the $20 million of major marketing, promotion and other costs related to the
introduction of four ships by Carnival plc.
Historical and pro forma gross operating costs per ALBD both increased
by 4.5% in 2003 compared to 2002. Historical and pro forma net operating
costs per ALBD increased 7.2% and 8.4%, respectively, in 2003 compared to
2002. Historical gross and net operating costs per ALBD in 2003 were higher
as compared to 2002 largely because of Carnival plc's higher operating cost
levels compared to Carnival Corporation, because of higher fuel costs and due
to the front-loading of advertising expenses in the 2003 first quarter. Pro
forma gross and net operating costs per ALBD in 2003 compared to 2002 were
largely higher because of higher fuel costs and front-loading of advertising
expenses, as well as Carnival plc's marketing, promotion and other costs
mentioned above.
Depreciation and amortization increased by $59 million, or 32%, to $241
million in 2003 from $182 million in 2002. This increase was primarily from
the consolidation of Carnival plc, which accounted for approximately $25
million of the increase, and the majority of the remaining increase was
primarily as a result of the expansion of the Carnival Corporation fleet and
ship improvement expenditures. Pro forma depreciation and amortization
expense increased by $55 million, or 21%, to $315 million from $260 million
largely due to the expansion of the pro forma combined fleet and ship
improvement expenditures.
Nonoperating (Expense) Income
Interest expense, net of interest income and excluding capitalized
interest, increased to $80 million in 2003 from $59 million in 2002, or $21
million, which was comprised primarily of a $31 million increase in interest
expense from our increased level of average borrowings, partially offset by
an $11 million decrease in interest expense due to lower average borrowing
rates. The higher average debt balances were primarily a result of our
consolidation of Carnival plc's debt, which contributed $15 million of the
increase in interest expense, and Carnival Corporation's issuance of $575
million of convertible notes, net of discount, $500 million of which was
received in April 2003 (see Note 5 in the accompanying financial statements).
Other income was $4 million in 2003, which was comprised of $19 million
from net insurance proceeds, $10 million as a result of Windstar's Wind Song
casualty loss and $9 million as a reimbursement of expenses incurred in prior
years, less $16 million related to the Computershare matter and other charges
associated with the DLC transaction (see Note 2 in the accompanying financial
statements). The Computershare matter relate to the settlement of claims by
Carnival plc shareholders whose tender through Chase Nominees Limited of over
53 million Carnival plc shares in the partial share offer was wrongfully
rejected by Computershare, our UK Receiving and Escrow Agent.
Three Months Ended May 31, 2003 ("2003") Compared To Three Months Ended May
31, 2002 ("2002")
Revenues
Revenues increased $345 million, or 35%, in 2003 compared to 2002.
Cruise revenues increased $341 million, or 35%, to $1.31 billion in 2003 from
$968 million in 2002. Approximately $283 million of our cruise revenue
increase was due to the consolidation of Carnival plc and $58 million was due
to increased revenues in Carnival Corporation cruise brands. Carnival
Corporation's cruise revenue change resulted primarily from a 16.6% increase
in its standalone ALBD capacity in 2003 compared to 2002, offset by a decline
in its gross revenue yields. Our pro forma ALBD capacity increase was 15.4%
in 2003 compared to 2002. Historical and pro forma gross revenue yields
declined 7.2% and 6.3%, respectively, in 2003 compared to 2002 for the same
reasons as the decline in net revenue yields discussed below, as well as the
reduced number of passengers purchasing air transportation from us.
Historical net revenue yields and pro forma net revenue yields declined 8.6%
and 6.7%, respectively, in 2003 compared to 2002 largely because of lower
cruise ticket prices and lower occupancy levels. Our cruise revenue yields
were adversely affected by consumer concerns about travel during the period
leading up to the war with Iraq and its eventual outbreak, along with the
uncertain world economy.
Onboard and other revenues, which are included in cruise revenues,
increased $92 million in 2003 to $301 million from $209 million in 2002.
Approximately $60 million of our onboard and other revenues increase was due
to the consolidation of Carnival plc and $32 million was due to increased
revenues from Carnival Corporation's cruise brands, primarily due to its
16.6% increase in ALBD capacity.
Costs and Expenses
Operating expenses increased $285 million, or 53%, in 2003 compared to
2002. Cruise operating expenses increased $283 million, or 55%, to $796
million in 2003 from $513 million in 2002. Approximately $187 million of our
cruise operating cost increase was due to the consolidation of Carnival plc,
and the remaining $96 million of the increase was from Carnival Corporation.
Carnival Corporation's increase was primarily a result of the impact of the
16.6% increase in its ALBD capacity and higher fuel costs. Pro forma
operating expenses increased $162 million, or 19%, to $1.03 billion in 2003
from $863 million in 2002 primarily as a result of the 15.4% increase in ALBD
capacity and higher fuel costs.
Selling and administrative expenses increased $70 million, or 49%, to
$212 million in 2003 from $142 million in 2002. Cruise selling and
administrative expenses increased $69 million, or 51%, to $204 million in
2003 from $135 million in 2002. Approximately $53 million of our increase
was due to the consolidation of Carnival plc and the remaining $16 million of
the increase was from Carnival Corporation, which was primarily due to the
16.6% increase in ALBD capacity. Pro forma selling and administrative
expenses increased $51 million, or 23%, to $273 million from $222 million in
2002, primarily as a result of the 15.4% increase in ALBD capacity, as well
as the $13 million of major marketing, promotion and other costs related to
the introduction of four ships by Carnival plc.
Historical and pro forma gross operating costs per ALBD increased 5.9%
and 5.2%, respectively, in 2003 as compared to 2002. Historical and pro
forma net operating costs per ALBD increased 8.4% and 9.2%, respectively, in
2003 compared to 2002. Historical gross and net operating costs per ALBD in
2003 were higher compared to 2002 largely because of Carnival plc's higher
operating cost levels compared to Carnival Corporation and because of higher
fuel costs. Pro forma gross and net operating costs per ALBD in 2003
compared to 2002 were largely higher because of higher fuel costs, and
Carnival plc's marketing, promotion and other costs mentioned above.
Depreciation and amortization increased by $42 million, or 46%, to $135
million in 2003 from $93 million in 2002. This increase was primarily from
the consolidation of Carnival plc, which accounted for approximately $25
million of the increase, and the majority of the remaining increase was
primarily as a result of the expansion of the Carnival Corporation fleet and
ship improvement expenditures. Pro forma depreciation and amortization
expense increased by $27 million, or 20%, to $160 million from $133 million
largely due to the expansion of the pro forma combined fleet and ship
improvement expenditures.
Nonoperating (Expense) Income
Interest expense, net of interest income and excluding capitalized
interest, increased to $46 million in 2003 from $28 million in 2002, or $18
million, which was comprised primarily of a $25 million increase in interest
expense from our increased level of average borrowings, partially offset by a
$6 million decrease in interest expense due to lower average borrowing rates.
The higher average debt balances were primarily due to the consolidation of
Carnival plc's debt, which contributed $15 million of the increase in
interest expense and Carnival Corporation's issuance of $575 million of
convertible notes.
Other expense was $11 million in 2003, which includes $16 million related
to the Computershare matter and other charges associated with the DLC
transaction. Other expense was $12 million in 2002, which was primarily
comprised of $9 million of losses, including related expenses, resulting from
the sale of Holland America's former Nieuw Amsterdam, and $4 million of direct
costs associated with cancelled cruises.
Liquidity and Capital Resources
Sources and Uses of Cash
Our business provided $661 million of net cash from operations during
the six months ended May 31, 2003, a decrease of $46 million, or 6.5%,
compared to the six months ended May 31, 2002.
During the six months ended May 31, 2003, our net expenditures for
capital projects were $613 million, of which $511 million was spent for our
ongoing shipbuilding program. The $102 million of nonshipbuilding capital
expenditures consisted primarily of ship refurbishments, Alaska tour assets,
cruise port facility developments and information technology assets. In
addition, we received $156 million from Carnival plc's existing cash balances
upon its acquisition, net of acquisition costs. Finally, we received an
insurance reimbursement of $31 million related to the Wind Song casualty loss
and $20 million from the sale of Cunard's Caronia, which we chartered back
through November 2004.
During the six months ended May 31, 2003, we issued convertible notes
for gross proceeds of $575 million for general corporate purposes, including
financing our shipbuilding program and other capital commitments. We also
borrowed $323 million under Costa's and POPCIL's revolving credit facilities
and $49.5 million of net borrowings under our short-term loan agreements. In
addition, we made principal repayments of $284 million, which included $50
million under our $1.4 billion revolver, $213 million on Costa's and POPCIL's
revolving credit facilities and $21 million on Costa's and POPCIL's
collaterized debt. We also paid cash dividends of $123 million in the first
six months of fiscal 2003.
Future Commitments and Funding Sources
Our contractual cash obligations, with initial or remaining terms in
excess of one year, and contingent obligations at May 31, 2003 compared to
November 30, 2002 changed significantly because of the consolidation of
Carnival plc. At May 31, 2003, the Carnival Corporation & plc outstanding
debt was $7.05 billion, of which $346 million is due in one year. In
addition, we had non-cancelable shipbuilding commitments for 16 new cruise
ships and one river boat due over the next three years of approximately $6.7
billion, of which $4.2 billion is due in the twelve months ending May 31,
2004. See Notes 5, 6 and 7 in the accompanying financial statements for our
debt, shipbuilding, other commitments and contingent obligations as of May
31, 2003.
At May 31, 2003, we had liquidity of $4.30 billion, which consisted of
$1.45 billion of cash, cash equivalents and short-term investments, $1.79
billion available for borrowing under our $2.4 billion of revolving credit
facilities obtained through a group of banks, which have strong credit
ratings, and $1.06 billion under committed ship financing arrangements. Our
revolving credit facilities mature in 2005, with respect to $710 million of
availability, and in 2006, with respect to $1.7 billion of availability. A
key to our access to liquidity is the maintenance of our strong long-term
credit ratings. In the 2003 second quarter, Moody's Investors Service,
Standard and Poor's and FitchRatings announced that they had lowered our
senior unsecured debt rating from A2 to A3, from A to A- and from A to A-,
respectively, in anticipation of, among other things, the DLC transaction
with Carnival plc.
We believe that our liquidity, including cash and committed financings,
and cash flows from future operations will be sufficient to fund most of our
expected capital projects, debt service requirements, dividend payments,
working capital and other firm commitments. Our forecasted cash flow from
future operations, as well as our credit ratings, may be adversely affected
by various factors, including, but not limited to, those noted under
"Cautionary Note Concerning Factors That May Affect Future Results." To the
extent that we are required, or choose, to fund future cash requirements,
including our future shipbuilding commitments, from sources other than as
discussed above, we believe that we will be able to secure financing from
banks or through the offering of debt and/or equity securities in the public
or private markets. No assurance can be given, however, that our future
operating cash flow will be sufficient to fund future obligations or that we
will be able to obtain additional financing, if necessary.
Market Risks
We have broadened our global presence as a result of the DLC
transaction. Specifically, our new international business operations in the
UK and Germany subject us to an increased level of foreign currency exchange
risk related to the sterling and euro. Accordingly, these foreign currency
exchange fluctuations against the dollar will affect our reported financial
results since the reporting currency for our consolidated financial
statements is the U.S. dollar and the functional currency for our
international operations is generally the local currency. Any weakening of
the U.S. dollar against these local functional currencies has the financial
statement effect of increasing the U.S. dollar values reported in our
consolidated financial statements. Strengthening of the U.S. dollar has the
opposite effect.
In addition, our higher level of debt resulting from the DLC transaction
increases our exposure to interest rate movements. At May 31, 2003, the fixed
and variable interest rate portions of our debt, after the effect of our
interest rate swaps, was 59% and 41%, respectively. Our debt, after the
effect of foreign currency swaps, was denominated 57% in U.S. dollars, 32% in
euros and 11% in sterling.
Off-Balance Sheet Arrangements
We are not a party to any off-balance sheet arrangements, including
guarantee contracts, retained or contingent interests, certain derivative
instruments and variable interest entities, that either have, or are
reasonably likely to have, a current or future material effect on our
financial statements.
CARNIVAL CORPORATION & PLC
HISTORICAL GAAP RECONCILING INFORMATION
Gross and net revenue yields and gross and net revenue per diems were
computed as follows (1):
Six Months Ended Three Months Ended
May 31, May 31,
2003 2002 2003 2002
(in thousands, except yields and per diems)
Cruise revenues $2,336,532 $1,869,358 $1,309,057 $968,096
Less commissions, air
transportation and other (458,388) (360,587) (256,290) (177,399)
Net cruise revenues $1,878,144 $1,508,771 $1,052,767 $790,697
Available lower berth
days ("ALBD's")(2) 13,465 10,319 7,661 5,258
Gross revenue yields (3) $ 173.53 $ 181.16 $ 170.87 $ 184.12
Net revenue yields (4) $ 139.48 $ 146.21 $ 137.42 $ 150.38
Passenger cruise days
("PCD's")(5) 13,512 10,559 7,544 5,359
Gross revenue per diems (6) $ 172.92 $ 177.04 $ 173.52 $ 180.65
Net revenue per diems (7) $ 139.00 $ 142.89 $ 139.55 $ 147.55
Gross and net operating costs per ALBD were comprised as follows (1):
Six Months Ended Three Months Ended
May 31, May 31,
2003 2002 2003 2002
(in thousands, except yields and per diems)
Cruise operating expenses $1,405,258 $1,025,315 $795,848 $513,079
Less commissions, air
transportation and other (458,388) (360,587) (256,290) (177,399)
Cruise selling and
administrative expenses 373,372 278,853 203,872 135,077
Net cruise costs $1,320,242 $ 943,581 $743,430 $470,757
ALBD's 13,465 10,319 7,661 5,258
Gross operating costs
per ALBD (8) $ 132.09 $ 126.39 $ 130.49 $ 123.27
Net operating costs per
ALBD (9) $ 98.05 $ 91.44 $ 97.04 $ 89.53
CARNIVAL CORPORATION & PLC
PRO FORMA GAAP RECONCILING INFORMATION
Our pro forma gross and net revenue yields and gross and net per diems,
assuming that the DLC transaction was completed and Carnival plc was
consolidated for the full periods noted below, would have been computed as
follows (1)(10):
Six months ended Three months ended
May 31, May 31,
2003 2002 2003 2002
(in thousands, except yields and per diems)
Cruise revenues $3,192,346 $2,845,140 $1,592,937 $1,473,071
Less commissions,
air transportation
and other (697,876) (630,842) (335,293) (304,310)
Net cruise revenues $2,494,470 $2,214,298 $1,257,644 $1,168,761
ALBD's (2) 17,710 15,273 9,087 7,877
Gross revenue yields (3) $ 180.25 $ 186.29 $ 175.30 $ 187.01
Net revenue yields (4) $ 140.85 $ 144.98 $ 138.40 $ 148.38
PCD's (5) 17,588 15,496 8,925 7,985
Gross revenue per diems (6)$ 181.51 $ 183.60 $ 178.48 $ 184.48
Net revenue per diems (7) $ 141.83 $ 142.89 $ 140.91 $ 146.37
Gross and net operating costs per ALBD were comprised as follows (1)(10):
Six months ended Three months ended
May 31, May 31,
2003 2002 2003 2002
(in thousands, except yields and per diems)
Cruise operating expenses $1,985,403 $1,642,625 $993,484 $824,350
Less commissions,
air transportation and other (697,876) (630,842) (335,293) (304,310)
Cruise selling and
administrative expenses 530,477 434,473 262,969 211,213
Net cruise costs $1,818,004 $1,446,256 $921,160 $731,253
ALBD's 17,710 15,273 9,087 7,877
Gross operating costs
per ALBD (8) $ 142.06 $ 136.00 $ 138.27 $ 131.47
Net operating costs per
ALBD (9) $ 102.65 $ 94.69 $ 101.37 $ 92.83
For additional information related to our pro forma consolidated
statements of operations and pro forma net cruise revenues and net cruise
costs, refer to our joint Current Report on Form 8-K, filed with the SEC on
June 25, 2003.
(1) We use net cruise revenue per available lower berth day ("net revenue
yields"), net cruise revenue per passenger cruise day ("net revenue per
diems") and net cruise costs per available lower berth day as significant
non-GAAP financial measures of our cruise segment financial performance.
We believe that net revenue yields and net revenue per diems are commonly
used in the cruise industry to measure a company's pricing performance.
These measures are also used for revenue management purposes. In
calculating net revenue yields and net revenue per diems, we use net
cruise revenues rather than gross cruise revenues. We believe that "net
cruise revenues" is a more meaningful measure in determining revenue
yield than gross cruise revenues because it reflects the cruise revenues
we received net of its most significant variable costs (travel agent
commissions, cost of air transportation and certain other variable direct
costs associated with onboard revenues). Substantially all of our
remaining cruise costs are largely fixed once our ship capacity levels
have been determined.
Net operating costs per available lower berth day is the most significant
measure we use to monitor our ability to control costs. In calculating
this measure, we deduct the same variable costs as described above, which
are included in the calculation of net revenues. This is done to avoid
duplicating these variable costs in the non-GAAP financial measures
described above because these variable costs are directly associated with
the revenues we earn.
(2) Represent the total passenger capacity for the period, assuming two
passenger per cabin, that we offer for sale, which is computed by
multiplying passenger capacity by revenue-producing ship operating days
in the period.
(3) Represent gross cruise revenues divided by ALBD's.
(4) Represent net cruise revenues divided by ALBD's.
(5) Represent the number of cruise passengers multiplied by the number of
revenue-producing ship operating days.
(6) Represent gross cruise revenues divided by PCD's.
(7) Represent net cruise revenues divided by PCD's.
(8) Represent gross operating expenses divided by ALBD's.
(9) Represent net cruise costs divided by ALBD's.
(10)For additional information related to the pro forma statements of
operations see Note 2 in the accompanying financial statements.
Item 4. Controls and Procedures.
Evaluation of Disclosure Controls and Procedures
Disclosure controls and procedures are designed to provide reasonable
assurance that information required to be disclosed by us in the reports that
we file or submit, is recorded, processed, summarized and reported, within
the time periods specified in the Securities and Exchange Commission's rules
and forms.
Our Chief Executive Officer, Chief Operating Officer and Chief Financial
and Accounting Officer have evaluated the disclosure controls and procedures
of each of Carnival Corporation and Carnival plc as of July 15, 2003 and
believe that they are effective within the reasonable assurance threshold
described above.
Changes in Internal Controls
There were no significant changes in our internal controls or other
factors that could significantly affect these controls subsequent to the date
of their evaluation and there were no corrective actions with regard to
significant deficiencies and material weaknesses.
It should be noted that any system of controls, however well designed
and operated, can provide only reasonable, and not absolute, assurance that
the objectives of the system will be met. In addition, the design of any
control system is based in part upon certain assumptions about the likelihood
of future events. Because of these and other inherent limitations of control
systems, there is only reasonable assurance that our controls will succeed in
achieving their stated goals under all potential future conditions.
PART II OTHER INFORMATION
Item 1. Legal Proceedings.
An action referred to as the Stock Purchase Complaint was previously
reported in the Carnival Corporation Annual Report on Form 10-K for the year
ended November 30, 2002. The parties to that action have signed a settlement
agreement dated June 3, 2003, which was submitted for judicial approval on
June 6, 2003.
An action referred to as the ADA Complaint against Holland America Tours
was previously reported in the Carnival Corporation Annual Report on Form 10-
K for the year ended November 30, 2002. Holland America Tours and the
plaintiffs have entered into a settlement agreement pursuant to an agreement
that Holland America Tours will make certain modifications to eleven of its
ships, with an option to include other ships into the settlement agreement.
On April 29, 2003, Holland America Tours and the plaintiffs jointly filed a
motion for class certification, fairness hearing, stay and for court approval
of the settlement. A hearing on the joint motion has not yet been scheduled.
An action was previously reported in the Carnival Corporation Annual
Report on Form 10-K for the year ended November 30, 2002 that certain of
Holland America's officers had received subpoenas relating to a wastewater
discharge from the Ryndam. One subpoena also requested the production of
Holland America documents, which Holland America has produced. Holland
America is also complying with a subpoena for additional documents.
On April 23, 2003, Festival Crociere S.p.A. commenced an action against
the Commission in the Court of First Instance of the European Communities in
Luxembourg seeking to annul the Commission's antitrust approval of the DLC
transaction. We have recently sought leave to intervene in the Festival
Action and intend to contest such action vigorously.
In April 1996, a purported class action complaint was filed against
Princess in the Los Angeles County Superior Court alleging that Princess
inappropriately assessed its passengers with certain port charges in addition
to their cruise fare. The plaintiffs have not claimed a specific damage
amount but settlement of this litigation had been agreed in principle with
the plaintiffs for coupons for future travel in amounts between $5 and $24,
with a total face value of approximately $13 million. However, on January
17, 2002, a Los Angeles, California Superior Court Judge ruled that he would
not consider the class-wide settlement agreed by the parties on the grounds
that he had previously ruled that there was no appropriate class. The
plaintiffs appealed the ruling, and the Court of Appeal upheld the lower
court's ruling. The plaintiff's writ to the California Supreme Court has
been denied. As a result of this ruling, the case remains pending.
An Italian subsidiary of Carnival plc made a claim for a tax deduction
in 1995 under the Italian Tremonti law, reducing taxable income by just over
129 million euros. Qualification for the deduction was dependent on
ownership of relevant assets. The subsidiary bareboat chartered a vessel,
for which a Tremonti benefit had been claimed, to an affiliate. In December
2001, the Italian tax authorities submitted an assessment for tax of 71
million euros plus penalties of 71 million euros on the grounds that the
subsidiary had finance leased, rather than chartered, the vessel and,
therefore, did not qualify for such a deduction. The Italian subsidiary
appealed against the assessment and the Low Tax Court of Palermo ruled in its
favor. We believe that it was probable that the tax authorities would have
appealed this ruling, and given the amount originally assessed, we decided to
settle this claim by making a 7 million euro payment in May 2003, which
liability had been recorded in the Carnival plc balance sheet prior to its
acquisition. Accordingly, these proceedings have been terminated.
Item 2. Changes in Securities and Use of Proceeds.
On April 17, 2003, Carnival Corporation and Carnival plc entered into a
DLC transaction. Because of the DLC transaction, the constituent instruments
defining the rights of holders of both Carnival Corporation's common stock,
par value $0.01 per share, and Carnival plc's ordinary shares, $1.66 stated
value per share, were modified. For a brief summary regarding the general
effect of those modifications, please refer to Note 2 in the accompanying
financial statements.
During the second quarter, Carnival Corporation issued $889 million
aggregate principal amount at maturity of its Senior Convertible Debentures
due 2003 to "Qualified Institutional Buyers" as defined in Rule 144A under
the Securities Act. The initial purchaser of the debentures was Merrill
Lynch & Co. Carnival Corporation received $575 million in net proceeds from
that issuance, and the aggregate commissions paid were $11.5 million. The
debentures are convertible as described in Note 5 in the accompanying
financial statements.
Item 4. Submission of Matters to a Vote of Security Holders.
Carnival Corporation
A special meeting of Carnival Corporation shareholders was held on April
14, 2003 (the "Special Meeting"). On all matters which came before the
Special Meeting, holders of Carnival Corporation common stock were entitled
to one vote for each share held. Proxies for 502,212,020 of the 586,972,729
shares of common stock entitled to vote were received in connection with the
Special Meeting.
The following table sets forth the matters which were submitted to
Carnival Corporation's shareholders for approval at the Special Meeting and
the tabulation of the votes with respect to each matter:
BROKER
MATTER FOR AGAINST WITHHELD NONVOTES
Approval of the Offer and
Implementation Agreement,
dated as of January 8, 2003,
between Carnival Corporation
and P&O Princess Cruises plc,
and the transactions contem-
plated by that agreement 497,809,658 1,730,574 2,671,788 0
Approval of amendments to
Carnival Corporation's
Articles of Incorporation and
By-laws in connection with the
transactions contemplated by
the Offer and Implementation
Agreement 464,054,299 35,440,272 2,717,449 0
Approval of an amendment to
the Articles of Incorporation
and By-laws of Carnival
Corporation to increase the
number of shares of common
stock that Carnival Corporation
has the authority to issue by
999,999,998 shares 493,737,115 4,923,579 3,551,326 0
Approval of an amendment to
the Articles of Incorporation
and By-laws of Carnival
Corporation to reduce the
quorum requirement for
meetings of the board of
directors of Carnival Corp-
oration from a majority, to
one-third, of the total number
of directors 356,953,713 141,030,982 4,227,325 0
Approval of an amendment to
the By-laws of Carnival
Corporation to reduce the
quorum requirement for
meetings of the shareholders
of Carnival Corporation from a
majority, to one-third, of the
total number of shares entitled
to be cast 381,675,433 116,309,188 4,227,399 0
Approval of an amendment to
the By-laws of Carnival
Corporation to remove the
ability of shareholders to act
by written consent 375,307,289 122,063,252 4,841,479 0
Carnival plc
An Extraordinary General Meeting of the shareholders of Carnival plc was
held on April 16, 2003 (the "EGM"). On all matters which came before the
EGM, holders of Carnival plc ordinary shares were entitled to one vote for
each share held. Proxies for 413,652,715 of the 693,741,420 ordinary shares
entitled to vote were lodged prior to the EGM.
The special resolution before the EGM was carried on a show of hands.
The following table sets forth the matter which was submitted to Carnival
plc's shareholders for approval at the EGM and the tabulation of the proxy
votes with respect to such matter lodged prior to the EGM:
REFRAIN/
MATTER FOR AGAINST ABSTAIN
To approve the dual listed
company transaction with
Carnival Corporation with
related acts, including the
share reorganization, the
creation and issue of a new
special voting share, a new
equalization share and new
preference shares, changes
to the company's memorandum
and articles of association
and the change of the company's
name to Carnival plc. 408,679,183 1,118,826 3,854,706
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
3.1 Third Amended and Restated Articles of Incorporation of Carnival
Corporation, incorporated by reference to Exhibit 3.1 to the
joint Current Report on Form 8-K of Carnival Corporation and
Carnival plc filed on April 17, 2003 (Commission File Nos. 1-9610
and 1-15136).
3.2 Amended and restated By-laws of Carnival Corporation,
incorporated by reference to Exhibit No. 3.2 to the joint Current
Report on Form 8-K of Carnival Corporation and Carnival plc filed
on April 17, 2003 (Commission File Nos. 1-9610 and 1-15136).
3.3 Articles of Association of Carnival plc, incorporated by
reference to Exhibit No. 3.3 to the joint Current Report on Form
8-K of Carnival Corporation and Carnival plc filed on April 17,
2003 (Commission File Nos. 1-9610 and 1-15136).
3.4 Memorandum of Association of Carnival plc, incorporated by
reference to Exhibit No. 3.4 to the joint Current Report on Form
8-K of Carnival Corporation and Carnival plc filed on April 17,
2003 (Commission File Nos. 1-9610 and 1-15136).
4.1 Specimen Common Stock Certificate, incorporated by reference to
Exhibit 4.16 to the joint registration statement on Form S-3 and
F-3 of Carnival Corporation, Carnival plc and POPCIL (Commission
File No. 333-106293).
4.2 Pairing Agreement, dated as of April 17, 2003, between Carnival
Corporation, The Law Debenture Trust Corporation (Cayman)
Limited, as trustee, and SunTrust Bank, as transfer agent,
incorporated by reference to the joint Current Report on Form 8-K
of Carnival Corporation and Carnival plc filed on April 17,
2003 (Commission File Nos. 1-9610 and 1-15136).
4.3 Voting Trust Deed, dated as of April 17, 2003, between Carnival
Corporation and The Law Debenture Trust Corporation (Cayman)
Limited, as trustee, incorporated by reference to the joint
Current Report on Form 8-K of Carnival Corporation and Carnival
plc filed on April 17, 2003 (Commission File Nos. 1-9610 and
1-15136).
4.4 SVE Special Voting Deed, dated as of April 17, 2003 between
Carnival Corporation, DLS SVC Limited, P&O Princess
Cruises plc, The Law Debenture Trust Corporation (Cayman)
Limited, as trustee, and The Law Debenture Trust Corporation,
P.L.C., incorporated by reference to the joint Current Report on
Form 8-K of Carnival Corporation and Carnival plc filed on April
17, 2003 (Commission File Nos. 1-9610 and 1-15136).
4.5 Carnival Corporation Deed of Guarantee, between Carnival
Corporation and Carnival plc, dated as of April 17, 2003,
incorporated by reference to Exhibit 4.3 to the joint
registration statement on Form S-4 of Carnival Corporation and
Carnival plc (Commission File No. 333-105671).
4.6 Carnival plc (formerly P&O Princess Cruises plc) Deed of
Guarantee between Carnival Corporation and Carnival plc, dated as
of April 17, 2003, incorporated by reference to Exhibit 4.10 to
the joint registration statement on Form S-3 and F-3 of Carnival
Corporation, Carnival plc and POPCIL (Commission File No. 333-
106293).
4.7 Third Supplemental Indenture, dated as of April 29, 2003, between
Carnival Corporation and U.S. Bank National Association, as
trustee, creating a series of securities designated Senior
Convertible Debentures due 2033, incorporated by reference to
Exhibit 4.13 to the joint registration statement on Form S-3 and
F-3 of Carnival Corporation, Carnival plc and POPCIL (Commission
File No. 333-106293).
4.8 Form of Senior Convertible Debenture (included in Exhibit 4.7).
4.9 Form of deposit agreement among P&O Princess Cruises plc, Morgan
Guaranty Trust Company of New York, as depositary, and holders and
beneficial owners from time to time of ADRs issued thereunder,
incorporated by reference to P&O Princess' registration statement
on Form 20-F (Commission File No. 1-15136).
10.1 Amended and Restated Carnival Corporation 2002 Stock Plan.
10.2 Employment Agreement dated as of April 17, 2003 by and between P&O
Princess Cruises International, Ltd. and Peter Ratcliffe.
10.3 Registration Rights Agreement, dated as of April 29, 2003, by and
among Carnival Corporation, Carnival plc and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, incorporated
by reference to Exhibit 4.14 to the joint registration statement
on Form S-3 and F-3 of Carnival Corporation, Carnival plc and
POPCIL (Commission File No. 333-106293).
10.4 Director Appointment letter between Micky M. Arison and Carnival
plc, dated April 14, 2003.
10.5 Indemnification Agreement between Micky M. Arison and Carnival
Corporation, dated April 17, 2003.
10.6 Director Appointment letter between Richard G. Capen, Jr. and
Carnival plc, dated April 14, 2003.
10.7 Indemnification Agreement between Richard G. Capen, Jr. and
Carnival Corporation, dated April 17, 2003.
10.8 Director Appointment letter between Robert H. Dickinson and
Carnival plc, dated April 14, 2003.
10.9 Indemnification Agreement between Robert H. Dickinson and Carnival
Corporation, dated April 17, 2003.
10.10 Director Appointment letter between Arnold W. Donald and Carnival
plc, dated April 14, 2003.
10.11 Indemnification Agreement between Arnold W. Donald and Carnival
Corporation, dated April 17, 2003.
10.12 Director Appointment letter between Pier Luigi Foschi and Carnival
plc, dated April 14, 2003.
10.13 Indemnification Agreement between Pier Luigi Foschi and Carnival
Corporation, dated April 17, 2003.
10.14 Director Appointment letter between Howard S. Frank and Carnival
plc, dated April 14, 2003.
10.15 Indemnification Agreement between Howard S. Frank and Carnival
Corporation, dated April 17, 2003.
10.16 Director Appointment letter between Baroness Sarah Hogg and
Carnival plc, dated April 14, 2003.
10.17 Director Appointment letter between Baroness Sarah Hogg and
Carnival Corporation, dated April 14, 2003.
10.18 Indemnification Agreement between A. Kirk Lanterman and Carnival
Corporation, dated April 17, 2003.
10.19 Director Appointment letter between Dr. Modesto A. Maidique and
Carnival plc, dated April 14, 2003.
10.20 Indemnification Agreement between Dr. Modesto A. Maidique and
Carnival Corporation, dated April 17, 2003.
10.21 Director Appointment letter between Sir John Parker and Carnival
plc, dated April 14, 2003.
10.22 Director Appointment letter between Sir John Parker and Carnival
Corporation, dated April 14, 2003.
10.23 Director Appointment letter between Peter G. Ratcliffe and
Carnival plc, dated April 14, 2003.
10.24 Indemnification Agreement between Peter G. Ratcliffe and Carnival
Corporation, dated April 17, 2003.
10.25 Director Appointment letter between Stuart S. Subotnick and
Carnival plc, dated April 14, 2003.
10.26 Indemnification Agreement between Stuart S. Subotnick and Carnival
Corporation, dated April 17, 2003.
10.27 Director Appointment letter between Uzi Zucker and Carnival plc,
dated April 14, 2003.
10.28 Indemnification Agreement between Uzi Zucker and Carnival
Corporation, dated April 17, 2003.
12 Ratio of Earnings to Fixed Charges.
99.1 Certification of Chief Executive Officer, Chief Operation Officer
and Chief Financial and Accounting Officer of Carnival Corporation
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section
906 of the Sarbanes-Oxley Act of 2002.
99.2 Certification of Chief Executive Officer, Chief Operating Officer
and Chief Financial and Accounting Officer of Carnival plc
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section
906 of the Sarbanes-Oxley Act of 2002.
(b) Reports on Form 8-K
Carnival Corporation filed a Current Report on Form 8-K on March 21,
2003 (Items 5 and 7) and Carnival Corporation and Carnival plc filed joint
Current Reports on Form 8-K on April 17, 2003 (Items 4 and 7, as amended on
April 29, 2003), April 23, 2003 (Items 5 and 7), April 30, 2003 (Items 5 and
7), May 7, 2003 (Item 5), May 19, 2003 (Items 5 and 7), May 23, 2003 (Item
5), May 29, 2003 (Items 5 and 7) and May 30, 2003 (Items 5 and 7).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrants have duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CARNIVAL CORPORATION CARNIVAL PLC
By:/s/ Micky Arison By:/s/ Micky Arison
Micky Arison Micky Arison
Chairman of the Board of Directors Chairman of the Board of Directors
and Chief Executive Officer and Chief Executive Officer
By:/s/ Howard S. Frank By:/s/ Howard S. Frank
Howard S. Frank Howard S. Frank
Vice Chairman of the Board of Vice Chairman of the Board of
Directors and Chief Operating Officer Directors and Chief Operating
Officer
By:/s/ Gerald R. Cahill By:/s/ Gerald R. Cahill
Gerald R. Cahill Gerald R. Cahill
Senior Vice President-Finance Senior Vice President-Finance
and Chief Financial and and Chief Financial and
Accounting Officer Accounting Officer
Dated: July 15, 2003 Dated: July 15, 2003
CARNIVAL CORPORATION CERTIFICATIONS
I, Micky Arison, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival
Corporation;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
(a) Designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this quarterly report is being
prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
(c) Presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors:
(a) All significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls;
and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
Date: July 15, 2003
By:/s/ Micky Arison
Micky Arison
Chairman of the Board of Directors
and Chief Executive Officer
I, Howard S. Frank, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival
Corporation;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
(a) Designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this quarterly report is being
prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
(c) Presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors:
(a) All significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls;
and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
Date: July 15, 2003
By:/s/ Howard S. Frank
Howard S. Frank
Vice Chairman of the Board of
Directors and Chief
Operating Officer
I, Gerald R. Cahill, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival
Corporation;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
(a) Designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this quarterly report is being
prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
(c) Presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors:
(a) All significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls;
and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
Date: July 15, 2003
By:/s/ Gerald R. Cahill
Gerald R. Cahill
Senior Vice President-Finance
and Chief Financial and
Accounting Officer
CARNIVAL PLC CERTIFICATIONS
I, Micky Arison, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival plc;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
(a) Designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this quarterly report is being
prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
(c) Presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors:
(a) All significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls;
and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
Date: July 15, 2003
By:/s/ Micky Arison
Micky Arison
Chairman of the Board of Directors
and Chief Executive Officer
I, Howard S. Frank, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival plc;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
(a) Designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this quarterly report is being
prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
(c) Presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors:
(a) All significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls;
and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
Date: July 15, 2003
By:/s/ Howard S. Frank
Howard S. Frank
Vice Chairman of the Board of
Directors and Chief
Operating Officer
I, Gerald R. Cahill, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival plc;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
(a) Designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this quarterly report is being
prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
(c) Presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors:
(a) All significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls;
and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
Date: July 15, 2003
By:/s/ Gerald R. Cahill
Gerald R. Cahill
Senior Vice President-Finance
and Chief Financial and
Accounting Officer
Exhibit 10.1
CARNIVAL CORPORATION
2002 STOCK PLAN
(Effective as of January 14, 2002,
as amended as of September 25, 2002,
and as further amended and restated as of April 17, 2003)
1. Purpose
The purpose of the Plan is to provide a means through which each member
of the Combined Group and their respective Affiliates may attract able
persons to enter and remain in the employ of members of the Combined Group
and their Affiliates and to provide a means whereby employees, directors and
consultants of each member the Combined Group and their Affiliates can
acquire and maintain Share ownership, thereby strengthening their commitment
to the welfare of the members of the Combined Group and their Affiliates and
promoting an identity of interest between shareholders and these persons.
The Plan provides for granting of Incentive Stock Options, Nonqualified
Stock Options and Restricted Stock Awards.
2. Definitions
The following definitions shall be applicable throughout the Plan.
(a) "Affiliate" means (i) any entity that directly or
indirectly is controlled by, controls or is under common control with the
Company or Carnival plc, and (ii) to the extent provided by the Committee,
any entity in which the Company or Carnival plc has a significant equity
interest.
(b) "Award" means, individually or collectively, any
Incentive Stock Option, Nonqualified Stock Option or Restricted Stock Award.
(c) "Award Agreement" means a Stock Option Agreement or
Restricted Stock Agreement.
(d) "Board" means the Board of Directors of the Company.
(e) "Carnival plc" means the entity previously known as P&O
Princess Cruises plc, a public limited company incorporated under the laws
of England and Wales, and any successor thereto.
(f) "Cause" means a member of the Combined Group or an
Affiliate having "cause" to terminate a Participant's employment or service,
as defined in any existing employment, consulting or any other agreement
between the Participant and a member of the Combined Group or an Affiliate
or, in the absence of such an employment, consulting or other agreement,
upon (i) the determination by the Committee that the Participant has ceased
to perform his duties to a member of the Combined Group or an Affiliate
(other than as a result of his incapacity due to physical or mental illness
or injury), which failure amounts to an intentional and extended neglect of
his duties to such party, (ii) the Committee's determination that the
Participant has engaged or is about to engage in willful misconduct or
conduct which causes or may reasonably be expected to cause substantial
damage to a member of the Combined Group or an Affiliate, (iii) the
Participant having been convicted of, or plead guilty or no contest to, a
felony or any crime involving as a material element fraud or dishonesty,
(iv) the failure of the Participant to follow the lawful instructions of the
Board or any of his superiors or (v) in the case of a Participant who is a
non-employee director, the Participant ceasing to be a member of the Board
in connection with the Participant engaging in any of the activities
described in clauses (i) through (iv) above.
(g) "Change of Control" means, unless in the case of a
particular Award the applicable Award Agreement states otherwise or contains
a different definition of "Change of Control," the occurrence of any of the
following:
(i) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more (on a fully diluted basis) of either (A) the
then outstanding shares of common stock of the Company, taking into account
as outstanding for this purpose such common stock issuable upon the exercise
of options or warrants, the conversion of convertible stock or debt, and the
exercise of any similar right to acquire such common stock (the "Outstanding
Company Common Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this Plan, the following
acquisitions shall not constitute a Change of Control: (I) any acquisition
by the Company or any Affiliate, (II) any acquisition by any employee
benefit plan sponsored or maintained by the Company or any Affiliate, (III)
any acquisition by Marilyn B. Arison, Micky Arison, Shari Arison, Michael
Arison or their spouses or lineal descendents, any trust established for the
benefit of any of the aforementioned Arison family members, or any Person
directly or indirectly controlling, controlled by or under common control
with any of the aforementioned Arison family members or any trust
established for the benefit of any of the aforementioned Arison family
members or any charitable trust or non-profit entity established by any
person or entity described in this clause (III), (IV) any acquisition by
any Person which complies with clauses (A), (B) and (C) of subsection (v) of
this Section 2(g), or (V) in respect of an Award held by a particular
Participant, any acquisition by the Participant or any "affiliate" (within
the meaning of 17 C.F.R. 230.405) of the Participant (persons described in
clauses (I), (II), (III) (IV) and (V) being referred to hereafter as
"Excluded Persons");
(ii) individuals who, on the date hereof,
constitute the Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board, provided that any person
becoming a director subsequent to the date hereof, whose election or
nomination for election was approved by a vote of at least two-thirds of the
Incumbent Directors then on the Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named
as a nominee for director, without written objection to such nomination)
shall be an Incumbent Director; provided, however, that no individual
initially elected or nominated as a director of the Company as a result of
an actual or threatened election contest, as such terms are used in Rule
14a-11 of Regulation A promulgated under the Exchange Act, with respect to
directors or as a result of any other actual or threatened solicitation of
proxies or consents by or on behalf of any person other than the Board shall
be deemed to be an Incumbent Director;
(iii) the dissolution or liquidation of the Company;
(iv) the sale, transfer or other disposition of all or
substantially all of the business or assets of the Company; or
(v) the consummation of a reorganization,
recapitalization, merger, consolidation, statutory share exchange or similar
form of corporate transaction involving the Company that requires the
approval of the Company's shareholders, whether for such transaction or the
issuance of securities in the transaction (a "Business Combination"), unless
immediately following such Business Combination: (A) more than 50% of the
total voting power of (x) the corporation resulting from such Business
Combination (the "Surviving Company"), or (y) if applicable, the ultimate
parent corporation that directly or indirectly has beneficial ownership of
sufficient voting securities eligible to elect a majority of the directors
of the Surviving Company (the "Parent Company"), is represented by the
Outstanding Company Voting Securities that were outstanding immediately
prior to such Business Combination (or, if applicable, is represented by
shares into which the Outstanding Company Voting Securities were converted
pursuant to such Business Combination), and such voting power among the
holders thereof is in substantially the same proportion as the voting power
of the Company's Voting Securities among the holders thereof immediately
prior to the Business Combination, (B) no Person (other than any Excluded
Person), is or becomes the beneficial owner, directly or indirectly, of 50%
or more of the total voting power of the outstanding voting securities
eligible to elect directors of the Parent Company (or, if there is no Parent
Company, the Surviving Company) and (C) at least a majority of the members
of the board of directors of the Parent Company (or, if there is no Parent
Company, the Surviving Company) following the consummation of the Business
Combination were Board members at the time of the Board's approval of the
execution of the initial agreement providing for such Business Combination.
(h) "Code" means the Internal Revenue Code of 1986, as
amended. Reference in the Plan to any section of the Code shall be deemed
to include any amendments or successor provisions to such section and any
regulations under such section.
(i) "Committee" means the Compensation Committee of the
Board. Unless the Board determines otherwise, each member of the Committee
shall, at the time he takes any action with respect to an Award under the
Plan, be an Eligible Director. However, the mere fact that a Committee
member shall fail to qualify as an Eligible Director shall not invalidate
any Award granted by the Committee which Award is otherwise validly granted
under the Plan.
(j) "Common Stock" means the common stock, par value $0.01
per share, of the Company and any stock into which such common stock may be
converted or into which it may be exchanged.
(k) "Combined Group" means the Company and Carnival plc and
any successor thereto.
(l) "Company" means Carnival Corporation, a corporation
organized under the laws of the Republic of Panama, and any successor
thereto.
(m) "Date of Grant" means the date on which the granting of
an Award is authorized, or such other date as may be specified in such
authorization or, if there is no such date, the date indicated on the
applicable Award Agreement.
(n) "Disability" means, unless in the case of a particular
Award, the applicable Award Agreement states otherwise, a condition
entitling a person to receive benefits under the long-term disability plan
of a member of the Combined Group or an Affiliate, as may be applicable to
the Participant in question, or, in the absence of such a plan, the complete
and permanent inability by reason of illness or accident to perform the
duties of the occupation at which a Participant was employed or served when
such disability commenced, as determined by the Committee based upon medical
evidence acceptable to it.
(o) "Effective Date" means January 14, 2002.
(p) "Eligible Director" means a person who is (i) a "non-
employee director" within the meaning of Rule 16b-3 under the Exchange Act,
or a person meeting any similar requirement under any successor rule or
regulation and (ii) an "outside director" within the meaning of Section
162(m) of the Code, and the Treasury Regulations promulgated thereunder;
provided, however, that clause (ii) shall apply only with respect to grants
of Awards with respect to which the Company's tax deduction could be limited
by Section 162(m) of the Code if such clause did not apply.
(q) "Eligible Person" means any (i) individual regularly
employed by a member of the Combined Group or an Affiliate who satisfies all
of the requirements of Section 6; provided, however, that no such employee
covered by a collective bargaining agreement shall be an Eligible Person
unless and to the extent that such eligibility is set forth in such
collective bargaining agreement or in an agreement or instrument relating
thereto; (ii) director of a member of the Combined Group or an Affiliate or
(iii) consultant or advisor to a member of the Combined Group or an
Affiliate who may be offered securities pursuant to Form S-8 (which, as of
the Effective Date, includes only those who (A) are natural persons and (B)
provide bona fide services to a member of the Combined Group other than in
connection with the offer or sale of securities in a capital-raising
transaction, and do not directly or indirectly promote or maintain a market
for the Company's securities).
(r) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(s) "Fair Market Value", on a given date means (i) if the
Shares are listed on a national securities exchange, the average of the
highest and lowest sale prices reported as having occurred on the primary
exchange with which the Shares are listed and traded on such date, or, if
there is no such sale on that date, then on the last preceding date on which
such a sale was reported; (ii) if the Shares are not listed on any national
securities exchange but is quoted in the Nasdaq National Market ("Nasdaq")
on a last sale basis, the average between the high bid price and low ask
price reported on the date prior to such date, or, if there is no such sale
on that date, then on the last preceding date on which a sale was reported;
or (iii) if the Shares are not listed on a national securities exchange nor
quoted in the Nasdaq on a last sale basis, the amount determined by the
Committee to be the fair market value based upon a good faith attempt to
value the Shares accurately and computed in accordance with applicable
regulations of the Internal Revenue Service.
(t) "Incentive Stock Option" means an Option granted by the
Committee to a Participant under the Plan which is designated by the
Committee as an incentive stock option as described in Section 422 of the
Code and which otherwise meets the requirements set forth herein.
(u) "Mature Shares" means Shares owned by a Participant
which are not subject to any pledge or other security interest and have
either been held by the Participant for six months, previously acquired by
the Participant on the open market or meet such other requirements as the
Committee may determine are necessary in order to avoid an accounting
earnings charge on account of the use of such Shares to pay the Option Price
or satisfy a withholding obligation in respect of an Option.
(v) "Nonqualified Stock Option" means an Option granted by
the Committee to a Participant under the Plan, which is not designated by
the Committee as an Incentive Stock Option.
(w) "Option" means an Award granted under Section 7.
(x) "Option Period" means the period described in Section
7(c).
(y) "Option Price" means the exercise price for an Option as
described in Section 7(a).
(z) "Pairing Agreement" means the Pairing Agreement, dated
April 17, 2003, among Carnival Corporation, The Law Debenture Trust
Corporation (Cayman) Limited, as trustee of the Carnival plc Special Voting
Trust, and Sun Trust Bank, as transfer agent, as it may be amended from time
to time.
(aa) "Participant" means an Eligible Person who has been
selected by the Committee to participate in the Plan and to receive an
Option pursuant to Section 6 or a Restricted Stock Award pursuant to Section
8.
(bb) "Performance Goals" means the performance objectives
which may be established by the Committee for the purpose of determining
whether, and to what extent, Awards will be earned for a Restricted Period.
To the extent an Award is intended to qualify as "performance-based
compensation" under Section 162(m) of the Code, the Performance Goals shall
be established with reference to one or more of the following, either on a
Combined Group-wide basis or, as relevant, in respect of the Company,
Carnival plc or one or more Affiliates, divisions or operations of a member
of the Combined Group:
(i) earnings (gross, net or per share)
(ii) stock price (absolute or relative to other
companies)
(iii) market share
(iv) gross or net profit margin
(v) costs or expenses
(vi) productivity improvements
(vii) total shareholder return (absolute or relative
to other companies).
.
(cc) "Plan" means this Carnival Company 2002 Stock Plan, as
amended.
(dd) "Restricted Period" means, with respect to any share of
Restricted Stock, the period of time determined by the Committee during
which such Award is subject to the restrictions set forth in Section 8.
(ee) "Restricted Stock" means Shares issued or transferred to
a Participant subject to forfeiture and the other restrictions set forth in
Section 8.
(ff) "Restricted Stock Award" means an Award of Restricted
Stock granted under Section 8.
(gg) "Retirement" means a termination of employment with a
member of the Combined Group and all Affiliates by a Participant on or after
the earlier of (i) age 65 with at least five years of employment with a
member of the Combined Group and/or its Affiliates or (ii) age 55 with at
least 15 years of employment with a member of the Combined Group and/or its
Affiliates.
(hh) "Securities Act" means the Securities Act of 1933, as
amended.
(ii) "Share" means the aggregate of one share of Common Stock
and one Trust Share.
(jj) "Stock Option Agreement" means any agreement between the
Company and a Participant who has been granted an Option pursuant to Section
7 which defines the rights and obligations of the parties thereto.
(kk) "Subsidiary" means any subsidiary of the Company as
defined in Section 424(f) of the Code.
(ll) "Trust Share" shall have the meaning assigned to it in
the Pairing Agreement.
3. Effective Date, Duration and Shareholder Approval
The Plan is effective as of the Effective Date, and the Plan was approved by
shareholders at a meeting held on April 15, 2002 in a manner intended to
comply with the shareholder approval requirements of Sections 422(b)(1) and
162(m) of the Code and the New York Stock Exchange. The validity of any and
all Restricted Stock Awards and any Award granted to an Eligible Person who
is an employee or a director of, or a consultant or advisor to Carnival plc
and its Affiliates (but not the Company) are contingent upon approval of the
April 17, 2003 amendment and restatement of this Plan by the shareholders of
the Company in a manner intended to comply with the shareholder approval
requirements of Section 162(m) of the Code and the New York Stock Exchange.
The expiration date of the Plan, on and after which no Awards may be granted
hereunder, shall be the tenth anniversary of the Effective Date; provided,
however, that the administration of the Plan shall continue in effect until
all matters relating to Awards previously granted have been settled.
4. Administration
The Committee shall administer the Plan. The majority of the members of the
Committee shall constitute a quorum. The acts of a majority of the members
present at any meeting at which a quorum is present or acts approved in
writing by a majority of the Committee shall be deemed the acts of the
Committee.
Subject to the provisions of the Plan and applicable law, the Committee
shall have the power, in addition to other express powers and authorizations
conferred on the Committee by the Plan, to: (i) designate Participants;
(ii) determine the type or types of Awards to be granted to a Participant;
(iii) determine the number of Shares to be covered by, or with respect to
which payments, rights, or other matters are to be calculated in connection
with, Awards; (iv) determine the terms and conditions of any Awards; (v)
determine whether, to what extent, and under what circumstances Awards may
be settled or exercised in cash, Shares, other securities, other Awards or
other property, or canceled, forfeited or suspended and the method or
methods by which Awards may be settled, exercised, canceled, forfeited or
suspended; (vi) determine whether, to what extent, and under what
circumstances the delivery of cash, Shares, other securities, other Awards,
other property and other amounts payable with respect to an Award shall be
deferred either automatically or at the election of the holder thereof or of
the Committee; (vii) interpret, administer reconcile any inconsistency,
correct any defect and/or supply any omission in the Plan and any instrument
or agreement relating to, or Award granted under, the Plan; (viii)
establish, amend, suspend, or waive such rules and regulations and appoint
such agents as it shall deem appropriate for the proper administration of
the Plan; and (ix) make any other determination and take any other action
specified under the Plan or that the Committee deems necessary or desirable
for the administration of the Plan.
(b) The Committee shall have the authority to amend the Plan (including by
the adaptation of appendices or subplans) and/or the terms and conditions
relating to an Award to the extent necessary to permit participation in the
Plan by Eligible Persons who are located outside of the United States on
terms and conditions comparable to those afforded to Eligible Persons
located within the United States; provided, however, that no such action
shall be taken without shareholder approval if such approval is necessary to
comply with any tax or regulatory requirement applicable to the Plan
(including as necessary to prevent the Company from being denied a tax
deduction on account of Section 162(m) of the Code).
(c) Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations and other decisions under or with respect to
the Plan or any Award or any documents evidencing Awards shall be within the
sole discretion of the Committee, may be made at any time and shall be
final, conclusive and binding upon all parties, including, without
limitation, each member of the Combined Group, their respective Affiliates,
any Participant, any holder or beneficiary of any Award, and any
shareholder.
5. Grant of Awards; Shares Subject to the Plan
The Committee may, from time to time, grant Awards of Options or Restricted
Stock to one or more Eligible Persons; provided, however, that:
(a) Subject to Section 10, the aggregate number of Shares in
respect of which Awards may be granted under the Plan shall not exceed
40,000,000.
(b) Shares shall be deemed to have been used in settlement
of Awards whether they are actually delivered. In the event any Award shall
be surrendered, terminate, expire, forfeited or cancelled for any reason
whatsoever without the Participant having benefited from therefrom, the
number of Shares no longer subject thereto shall thereupon be released and
shall thereafter be available for new Awards under the Plan. For purposes
of the foregoing sentence, a Participant shall not be deemed to have
received any "benefit" in the case of forfeited Restricted Stock Awards by
reason of having enjoyed voting rights and dividend rights prior to the date
of forfeiture;
(c) Shares delivered by the Company in settlement of Awards
may be authorized and unissued Shares or Shares held in the treasury of the
Company or purchased on the open market or by private purchase; and
(d) Subject to Section 10, no person may be granted an Award
under the Plan during any calendar year with respect to more than 2,000,000
Shares; provided that such number shall be adjusted pursuant to Section 10,
and Shares otherwise counted against such number, only in a manner which
will not cause the Awards granted under the Plan to fail to qualify as
"performance-based compensation" under Section 162(m) of the Code.
6. Eligibility
Participation shall be limited to Eligible Persons who have received written
notification from the Committee, or from a person designated by the
Committee, that they have been selected to participate in the Plan.
7. Terms of Options
The Committee is authorized to grant one or more Incentive Stock Options or
Nonqualified Stock Options to any Eligible Person; provided, however, that
no Incentive Stock Option shall be granted to any Eligible Person who is not
an employee of the Company or a Subsidiary. Each Option so granted shall be
subject to the conditions set forth in this Section 7, or to such other
conditions as may be reflected in the applicable Stock Option Agreement.
(a) Option Price. The Option Price per Share for each
Option shall be set by the Committee at the time of grant but shall not be
less than (i) in the case of an Incentive Stock Option, and subject to
Section 7(f), the Fair Market Value of a Share on the Date of Grant, and
(ii) in the case of a Non-Qualified Stock Option, 85% of the Fair Market
Value of a Share on the Date of Grant; provided, however, that all Options
intended to qualify as "performance-based compensation" under Section 162(m)
of the Code shall have an Option Price per Share no less than the Fair
Market Value of a Share on the Date of Grant.
(b) Manner of Exercise and Form of Payment. No Shares shall
be delivered pursuant to any exercise of an Option until payment in full of
the Option Price therefor is received by the Company. Options which have
become exercisable may be exercised by delivery of written notice of
exercise to the Company accompanied by payment of the aggregate Option
Price. The Option Price shall be payable in cash and/or Shares valued at
the Fair Market Value at the time the Option is exercised (including by
means of attestation of ownership of a sufficient number of Shares in lieu
of actual delivery of such Shares to the Company), provided that such Shares
are Mature Shares, or, in the discretion of the Committee, either (i) in
other property having a fair market value on the date of exercise equal to
the Option Price, (ii) by delivering to the Committee a copy of irrevocable
instructions to a stockbroker to deliver promptly to the Company an amount
of loan proceeds, or proceeds of the sale of the Shares subject to the
Option, sufficient to pay the Option Price or (iii) by such other method as
the Committee may allow.
(c) Vesting, Option Period and Expiration. Options shall
vest and become exercisable in such manner and on such date or dates
determined by the Committee and shall expire after such period, not to
exceed ten years, as may be determined by the Committee (the "Option
Period"); provided, however, that notwithstanding any vesting dates set by
the Committee, the Committee may, in its sole discretion, accelerate the
exercisability of any Option, which acceleration shall not affect the terms
and conditions of such Option other than with respect to exercisability. If
an Option is exercisable in installments, such installments or portions
thereof which become exercisable shall remain exercisable until the Option
expires.
Unless otherwise stated in the applicable Stock Option
Agreement, an Option shall expire earlier than the end of the Option Period
in the following circumstances:
(i) If prior to the end of the Option Period, the
Participant's employment or service with each member of the Combined
Group and all Affiliates is terminated by a member of the Combined
Group without Cause or by the Participant for any reason other than
Retirement, the Option shall expire on the earlier of the last day of
the Option Period or the date that is three months after the date of
such termination; provided, however, that any Participant whose
employment or service with a member of the Combined Group or any
Affiliate is terminated and who is subsequently rehired or reengaged by
a member of the Combined Group or any Affiliate prior to the expiration
of the Option shall not be considered to have undergone a termination.
In the event of a termination described in this clause (i), the Option
shall remain exercisable by the Participant until its expiration only
to the extent the Option was exercisable at the time of such
termination.
(ii) If the Participant dies or is terminated on account
of Disability prior to the end of the Option Period and while still in
the employ or service of a member of the Combined Group or an
Affiliate, or dies following a termination described in clause (i)
above but prior to the expiration of an Option, the Option shall expire
on the earlier of the last day of the Option Period or the date that is
one year after the date of death or termination on account of
Disability of the Participant, as applicable. In such event, the
Option shall remain exercisable by the Participant or his or her
beneficiary determined in accordance with Section 9(p), as applicable,
until its expiration only to the extent the Option was exercisable by
the Participant at the time of such event.
(iii) If the Participant ceases employment or
service with a member of the Combined Group and Affiliates due to a
termination by a member of the Combined Group or an Affiliate for
Cause, the Option shall expire immediately upon such cessation of
employment or service.
Unless stated otherwise in an applicable Stock Option
Agreement, if the Participant terminates by reason of Retirement prior to
the end of the Option Period, the Option shall (i) expire at the end of the
Option Period and (ii) continue vesting in accordance with the vesting
schedule set forth in the Stock Option Agreement, without regard to any
requirement in such vesting schedule that the Participant remain employed
with a member of the Combined Group or an Affiliate as a condition to
vesting.
(d) Other Terms and Conditions. Each Option granted under
the Plan shall be evidenced by a Stock Option Agreement. Except as
specifically provided otherwise in a Stock Option Agreement, each Option
granted under the Plan shall be subject to the following terms and
conditions:
(i) Each Option or portion thereof that is exercisable
shall be exercisable for the full amount or for any part thereof.
(ii) Each Share purchased through the exercise of an
Option shall be paid for in full at the time of the exercise. Each
Option shall cease to be exercisable, as to any Share, when the
Participant purchases the share or when the Option expires.
(iii) Subject to Section 8(h), Options shall not be
transferable by the Participant except by will or the laws of descent
and distribution and shall be exercisable during the Participant's
lifetime only by him.
(iv) Each Option shall vest and become exercisable by
the Participant in accordance with the vesting schedule established by
the Committee and set forth in the Stock Option Agreement.
(v) At the time of any exercise of an Option, the
Committee may, in its sole discretion, require a Participant to deliver
to the Committee a written representation that the Shares to be
acquired upon such exercise are to be acquired for investment and not
for resale or with a view to the distribution thereof. Upon such a
request by the Committee, delivery of such representation prior to the
delivery of any Shares issued upon exercise of an Option shall be a
condition precedent to the right of the Participant or such other
person to purchase any Shares. In the event certificates for Shares
are delivered under the Plan with respect to which such investment
representation has been obtained, the Committee may cause a legend or
legends to be placed on such certificates to make appropriate reference
to such representation and to restrict transfer in the absence of
compliance with applicable federal or state securities laws.
(vi) Each Participant awarded an Incentive Stock Option
under the Plan shall notify the Company in writing immediately after
the date he makes a disqualifying disposition of any Shares acquired
pursuant to the exercise of such Incentive Stock Option. A
disqualifying disposition is any disposition (including any sale) of
such Shares before the later of (a) two years after the Date of Grant
of the Incentive Stock Option or (b) one year after the date the
Participant acquired the Shares by exercising the Incentive Stock
Option.
(vii) Except as specifically provided otherwise in a
Stock Option Agreement, any Participant who is classified as a
"shipboard employee," and who has not otherwise evidenced a specific
intent to permanently terminate his employment with each member of the
Combined Group and all Affiliates (as reasonably determined by the
Committee) shall not be considered to have terminated employment with
each member of the Combined Group and all Affiliates until a six-month
period has expired from his signing off of a ship without physically
signing on to another ship.
(e) Incentive Stock Option Grants to 10% Shareholders.
Notwithstanding anything to the contrary in this Section 7, if an Incentive
Stock Option is granted to a Participant who owns stock representing more
than ten percent of the voting power of all classes of stock of the Company
or of a Subsidiary or a parent of the Company, the Option Period shall not
exceed five years from the Date of Grant of such Option and the Option Price
shall be at least 110 percent of the Fair Market Value (on the Date of
Grant) of the Shares subject to the Option.
(f) $100,000 Per Year Limitation for Incentive Stock
Options. To the extent the aggregate Fair Market Value (determined as of
the Date of Grant) of Shares for which Incentive Stock Options are
exercisable for the first time by any Participant during any calendar year
(under all plans of the Company) exceeds $100,000, such excess Incentive
Stock Options shall be treated as Nonqualified Stock Options.
8. Restricted Stock Awards
(a) Awards of Restricted Stock.
(i) The Committee shall have the authority (A) to grant
Restricted Stock Awards to Eligible Persons, (B) to issue or transfer
Restricted Stock to Participants, and (C) to establish terms,
conditions and restrictions applicable to such Restricted Stock,
including the Restricted Period, which may differ with respect to each
Participant, the time or times at which Restricted Stock shall be
granted or become vested and the number of Shares to be covered by each
grant.
(ii) Each Participant granted a Restricted Stock Award
shall execute and deliver to the Company a Restricted Stock Agreement
with respect to the Restricted Stock setting forth the restrictions
applicable to such Restricted Stock. If the Committee determines that
the Restricted Stock shall be held in escrow rather than delivered to
the Participant pending the release of the applicable restrictions, the
Committee may require the Participant to additionally execute and
deliver to the Company (A) an escrow agreement satisfactory to the
Committee and (B) the appropriate blank stock powers with respect to
the Restricted Stock covered by such agreement. If a Participant shall
fail to execute an agreement evidencing an Award of Restricted Stock
and, if applicable, an escrow agreement and stock powers, the Award
shall be null and void. Subject to the restrictions set forth in
Section 8(b), the Participant generally shall have the rights and
privileges of a stockholder as to such Restricted Stock, including the
right to vote such Restricted Stock. At the discretion of the
Committee, cash dividends and stock dividends with respect to the
Restricted Stock may be either currently paid to the Participant or
withheld by the Company for the Participant's account, and interest may
be credited on the amount of cash dividends withheld at a rate and
subject to such terms as determined by the Committee. The cash
dividends or stock dividends so withheld by the Committee and
attributable to any particular share of Restricted Stock (and earnings
thereon, if applicable) shall be distributed to the Participant upon
the release of restrictions on such share and, if such share is
forfeited, the Participant shall have no right to such cash dividends
stock dividends.
(iii) Upon the grant of an Award of Restricted
Stock, the Committee shall cause a stock certificate registered in the
name of the Participant to be issued and, if it so determines,
deposited together with the stock powers with an escrow agent
designated by the Committee. If an escrow arrangement is used, the
Committee may cause the escrow agent to issue to the Participant a
receipt evidencing any stock certificate held by it registered in the
name of the Participant.
(b) Restrictions.
(i) Restricted Stock awarded to a Participant shall be
subject to the following restrictions until the expiration of the
Restricted Period, and to such other terms and conditions as may be set
forth in the applicable Restricted Stock Agreement: (A) if an escrow
arrangement is used, the Participant shall not be entitled to delivery
of the stock certificate; (B) the Shares shall be subject to the
restrictions on transferability set forth in the Restricted Stock
Agreement; (C) the Shares shall be subject to forfeiture to the extent
provided in the applicable Restricted Stock Agreement and, to the
extent such Shares are forfeited, the stock certificates shall be
returned to the Company, and all rights of the Participant to such
Shares and as a shareholder shall terminate without further obligation
on the part of the Company.
(ii) The Committee shall have the authority to remove
any or all of the restrictions on the Restricted Stock whenever it may
determine that, by reason of changes in applicable laws or other
changes in circumstances arising after the date of the Restricted Stock
Award, such action is appropriate.
(c) Restricted Period. The Restricted Period of Restricted
Stock shall commence on the Date of Grant and shall expire from time to time
as to that part of the Restricted Stock indicated in a schedule established
by the Committee in the applicable Restricted Stock Agreement.
(d) Delivery of Restricted Stock. Upon the expiration of
the Restricted Period with respect to any Shares covered by an Award of
Restricted Stock, the restrictions set forth in Section 8(b) and the
Restricted Stock Agreement shall be of no further force or effect with
respect to shares of Restricted Stock which have not then been forfeited.
If an escrow arrangement is used, upon such expiration, the Company shall
deliver to the Participant, or his beneficiary, without charge, the stock
certificate evidencing the shares of Restricted Stock which have not then
been forfeited and with respect to which the Restricted Period has expired
(to the nearest full share) and any cash dividends or stock dividends
credited to the Participant's account with respect to such Restricted Stock
and the interest thereon, if any.
(e) Stock Restrictions. Each certificate representing
Restricted Stock awarded under the Plan shall bear a legend until the lapse
of all restrictions with respect to the Shares subject to the Award
substantially in the form set forth below, as well as containing any other
information the Company deems appropriate:
Transfer of this certificate and the shares represented hereby is
restricted pursuant to the terms of the Carnival Corporation 2002 Stock
Plan, as amended from time to time, and a Restricted Stock Agreement,
dated as of _____________, between Carnival Corporation and
__________________. Copies of such Plan and Agreement are on file at
the offices of Carnival Corporation.
Stop transfer orders shall be entered with the Company's transfer agent and
registrar against the transfer of legended securities.
(f) Applicability of Section 162(m). With respect to Awards
of Restricted Stock intended to qualify as "performance-based compensation"
under Section 162(m) of the Code, this Section 8 (including the substance of
the Performance Goals, the timing of establishment of the Performance Goals,
the adjustment of the Performance Goals and determination of the Award)
shall be implemented by the Committee in a manner designed to preserve such
Awards as such "performance-based compensation."
9. General
(a) Additional Provisions of an Award. Awards granted to a
Participant under the Plan also may be subject to such other provisions
(whether or not applicable to Awards granted to any other Participant) as
the Committee determines appropriate including, without limitation,
provisions to assist the Participant in financing the purchase of Shares
upon the exercise of Options (provided that the Committee determines that
providing such financing does not violate the Sarbanes-Oxley Act of 2002),
provisions for the forfeiture of or restrictions on resale or other
disposition of Shares acquired under any Award, provisions giving the
Company the right to repurchase Shares acquired under any Award in the event
the Participant elects to dispose of such Shares, provisions allowing the
Participant to elect to defer the receipt of Shares upon the exercise of
Awards for a specified period or until a specified event, and provisions to
comply with Federal and state securities laws and Federal and state tax
withholding requirements. Any such provisions shall be reflected in the
applicable Award Agreement.
(b) Privileges of Stock Ownership. Except as otherwise
specifically provided in the Plan, no person shall be entitled to the
privileges of ownership in respect of Shares which are subject to Awards
hereunder until such Shares have been issued to that person.
(c) Government and Other Regulations. The obligation of the
Company to issue Shares upon the exercise of Options or otherwise settle
Awards in Shares shall be subject to all applicable laws, rules, and
regulations, and to such approvals by governmental agencies as may be
required. Notwithstanding any terms or conditions of any Award to the
contrary, the Company shall be under no obligation to offer to sell or to
sell and shall be prohibited from offering to sell or selling any Shares
pursuant to an Award unless such Shares have been properly registered for
sale pursuant to the Securities Act with the Securities and Exchange
Commission or unless the Company has received an opinion of counsel,
satisfactory to the Company, that such Shares may be offered or sold without
such registration pursuant to an available exemption therefrom and the terms
and conditions of such exemption have been fully complied with. The Company
shall be under no obligation to register for sale under the Securities Act
any of the Shares to be offered or sold under the Plan. If the Shares
offered for sale or sold under the Plan are offered or sold pursuant to an
exemption from registration under the Securities Act, the Company may
restrict the transfer of such Shares and may legend the stock certificates
representing such Shares in such manner as it deems advisable to ensure the
availability of any such exemption.
(d) Tax Withholding.
(i) A Participant may be required to pay to a member of
the Combined Group or any Affiliate, and each member of the Combined Group
or any Affiliate shall have the right and is hereby authorized to withhold
from any Shares or other property deliverable under any Award or from any
compensation or other amounts owing to a Participant the amount (in cash,
Shares or other property) of any required tax withholding and payroll taxes
in respect of an Award, its exercise, or any payment or transfer under an
Award or under the Plan and to take such other action as may be necessary in
the opinion of the Company to satisfy all obligations for the payment of
such taxes.
(ii) Without limiting the generality of clause (i)
above, the Committee may, in its sole discretion, permit a Participant to
satisfy, in whole or in part, the foregoing withholding liability (but no
more than the minimum required withholding liability if using method (B) or
(C) of this subsection) by (A) payment in cash; (B) delivery of Shares owned
by the Participant (which Shares must be Mature Shares) with a Fair Market
Value equal to such withholding liability or (C) having the Company withhold
from the number of Shares otherwise issuable pursuant to the exercise of the
Award a number of Shares with a Fair Market Value equal to such withholding
liability.
(e) Claim to Options and Employment Rights. No employee of
a member of the Combined Group, an Affiliate, or other person, shall have
any claim or right to be granted an Award under the Plan or, having been
selected for the grant of an Award, to be selected for a grant of any other
Award. Neither the Plan nor any action taken hereunder shall be construed
as giving any Participant any right to be retained in the employ or service
of a member of the Combined Group or an Affiliate.
(f) No Liability of Committee Members. No member of the
Committee shall be personally liable by reason of any contract or other
instrument executed by such member or on his behalf in his capacity as a
member of the Committee nor for any mistake of judgment made in good faith,
and the Company shall indemnify and hold harmless each member of the
Committee and each other employee, officer or director of the Company to
whom any duty or power relating to the administration or interpretation of
the Plan may be allocated or delegated, against any cost or expense
(including counsel fees) or liability (including any sum paid in settlement
of a claim) arising out of any act or omission to act in connection with the
Plan unless arising out of such person's own fraud or willful bad faith;
provided, however, that approval of the Board shall be required for the
payment of any amount in settlement of a claim against any such person. The
foregoing right of indemnification shall not be exclusive of any other
rights of indemnification to which such persons may be entitled under the
Company's Articles of Incorporation or By-Laws, as a matter of law, or
otherwise, or any power that the Company may have to indemnify them or hold
them harmless.
(g) Governing Law. The Plan shall be governed by and
construed in accordance with the internal laws of the State of Florida
without regard to the principles of conflicts of law thereof, or principles
of conflicts of laws of any other jurisdiction which could cause the
application of the laws of any jurisdiction other than the State of Florida.
(h) Nontransferability.
(i) Each Award shall be exercisable only by a
Participant during the Participant's lifetime, or, if permissible under
applicable law, by the Participant's legal guardian or representative. No
Award may be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Participant otherwise than by will or by the
laws of descent and distribution and any such purported assignment,
alienation, pledge, attachment, sale, transfer or encumbrance shall be void
and unenforceable against each member of the Combined Group or an Affiliate;
provided that the designation of a beneficiary shall not constitute an
assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(ii) Notwithstanding the foregoing, the Committee may,
in its sole discretion, permit Nonqualified Stock Options and Restricted
Stock to be transferred by a Participant, without consideration, subject to
such rules as the Committee may adopt consistent with any applicable Award
Agreement to preserve the purposes of the Plan, to:
(A) any person who is a "family member" of the Participant,
as such term is used in the instructions to Form S-8
(collectively, the "Immediate Family Members");
(B) a trust solely for the benefit of the Participant and
his or her Immediate Family Members;
(C) a partnership or limited liability company whose only
partners or shareholders are the Participant and his
Immediate Family Members; or
(D) any other transferee as may be approved either (a) by
the Board or the Committee in its sole discretion, or
(b) as provided in the applicable Award Agreement;
(each transferee described in clauses (A), (B), (C) and (D) above is
hereinafter referred to as a "Permitted Transferee"); provided that the
Participant gives the Committee advance written notice describing the terms
and conditions of the proposed transfer and the Committee notifies the
Participant in writing that such a transfer would comply with the
requirements of the Plan.
(iii) The terms of any Nonqualified Stock Option or
Restricted Stock transferred in accordance with the immediately preceding
sentence shall apply to the Permitted Transferee and any reference in the
Plan, or in any applicable Award Agreement, to a Participant shall be deemed
to refer to the Permitted Transferee, except that (A) Permitted Transferees
shall not be entitled to transfer any Nonqualified Stock Option or
Restricted Stock, other than by will or the laws of descent and
distribution; (B) Permitted Transferees shall not be entitled to exercise a
transferred Nonqualified Stock Option unless there shall be in effect a
registration statement on an appropriate form covering the Shares to be
acquired pursuant to the exercise of such Nonqualified Stock Option if the
Committee determines, consistent with any applicable Stock Option Agreement,
that such a registration statement is necessary or appropriate, (C) the
Committee or any member of the Combined Group shall not be required to
provide any notice to a Permitted Transferee, whether or not such notice is
or would otherwise have been required to be given to the Participant under
the Plan or otherwise, and (D) the consequences of a Participant no longer
being employed by, or in the services of, the a member of the Combined Group
or an Affiliate under the terms of the Plan and the applicable Award
Agreement shall continue to be applied with respect to the Participant,
including, without limitation, that a Nonqualified Stock Option shall be
exercisable by the Permitted Transferee only to the extent, and for the
periods, specified in the Plan and the applicable Stock Option Agreement.
(i) Reliance on Reports. Each member of the Committee and
each member of the Board shall be fully justified in acting or failing to
act, as the case may be, and shall not be liable for having so acted or
failed to act in good faith reliance upon any report made by the independent
public accountant of the Combined Group and its Affiliates and upon any
other information furnished in connection with the Plan by any person or
persons other than himself.
(j) Relationship to Other Benefits. No payment under the
Plan shall be taken into account in determining any benefits under any
pension, retirement, profit sharing, group insurance or other benefit plan
of a member of the Combined Group or any Affiliate except as otherwise
specifically provided in such other plan.
(k) Expenses. The expenses of administering the Plan shall
be borne by the Company and Affiliates.
(l) Gender and Number. Where the context admits, masculine
pronouns and other words of masculine gender shall refer to both men and
women, words in the singular shall include the plural and words in the
plural shall include the singular.
(m) Titles and Headings. The titles and headings of the
sections in the Plan are for convenience of reference only, and in the event
of any conflict, the text of the Plan, rather than such titles or headings
shall control.
(n) Termination of Employment. For all purposes herein, a
person who transfers from employment or service with a member of the
Combined Group to employment or service with an Affiliate or vice versa
shall not be deemed to have terminated employment or service with a member
of the Combined Group or such Affiliate.
(o) Severability. If any provision of the Plan or any Award
Agreement is or becomes or is deemed to be invalid, illegal, or
unenforceable in any jurisdiction or as to any person or Award, or would
disqualify the Plan or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
the applicable laws, or if it cannot be construed or deemed amended without,
in the determination of the Committee, materially altering the intent of the
Plan or Award, such provision shall be stricken as to such jurisdiction,
person or Award and the remainder of the Plan and any such Award shall
remain in full force and effect.
(p) Beneficiary Designation. Each Participant may designate
one or more beneficiaries by delivering a signed written designation thereof
to the Committee. Upon the death of a Participant, his beneficiaries shall
be entitled to the Awards granted to such Participant under the terms of
this Plan. A Participant may change his beneficiary designation at any time
by delivering a new designation in accordance with the first sentence of
this paragraph. Any designation shall become effective only upon its
receipt by the Committee. In the absence of an effective beneficiary
designation in accordance with this Section 9(p), a Participant's
beneficiary shall be his estate. After the receipt of Options in accordance
with this paragraph, beneficiaries will only be able to exercise such
Options in accordance with Section 7(c)(ii) of this Plan.
10. Changes in Capital Structure
Awards granted under the Plan and any Award Agreements, the maximum number
of Shares subject to all Awards stated in Section 5(a) and the maximum
number of Shares with respect to which any one person may be granted Awards
during any period stated in Section 5(d) shall be subject to adjustment or
substitution, as determined by the Committee in its sole discretion, as to
the number, price or kind of a share of stock or other consideration subject
to such Awards or as otherwise determined by the Committee to be equitable
(i) in the event of changes in the outstanding Shares or in the capital
structure of the Company by reason of stock or extraordinary cash dividends,
stock splits, reverse stock splits, recapitalization, reorganizations,
mergers, consolidations, combinations, exchanges, an unpairing of the shares
of Common Stock from the Trust Shares, or other relevant changes in
capitalization occurring after the Date of Grant of any such Awards or (ii)
in the event of any change in applicable laws or any change in circumstances
which results in or would result in any substantial dilution or enlargement
of the rights granted to, or available for, Participants, or which otherwise
warrants equitable adjustment because it interferes with the intended
operation of the Plan. Any adjustment in Incentive Stock Options under this
Section 10 shall be made only to the extent not constituting a
"modification" within the meaning of Section 424(h)(3) of the Code, and any
adjustments under this Section 10 shall be made in a manner which does not
adversely affect the exemption provided pursuant to Rule 16b-3 under the
Exchange Act. Further, with respect to Awards intended to qualify as
"performance-based compensation" under Section 162(m) of the Code, such
adjustments or substitutions shall be made only to the extent that the
Committee determines that such adjustments or substitutions may be made
without causing the Company to be denied a tax deduction on account of
Section 162(m) of the Code. The Company shall give each Participant notice
of an adjustment hereunder and, upon notice, such adjustment shall be
conclusive and binding for all purposes.
Notwithstanding the above, in the event of any of the following:
A. The Company is merged or consolidated with another corporation or
entity and, in connection therewith, consideration is received by
shareholders of the Company in a form other than stock or other equity
interests of the surviving entity;
B. All or substantially all of the assets of the Company are acquired by
another person;
C. The reorganization or liquidation of the Company; or
D. The Company shall enter into a written agreement to undergo an event
described in clauses A, B or C above,
then the Committee may, in its discretion and upon at least 10 days advance
notice to the affected persons, cancel any outstanding Awards and cause the
holders thereof to be paid, in cash or stock, or any combination thereof,
the value of such Awards based upon the price per share of the shares of
stock or other consideration received or to be received by other
shareholders of the Company in the event. The terms of this Section 10 may
be varied by the Committee in any particular Award Agreement.
11. Effect of Change of Control
Except to the extent reflected in a particular Award Agreement:
(a) In the event of a Change of Control, notwithstanding any
provision of the Plan to the contrary, all Options shall become immediately
exercisable with respect to 100 percent of the Shares subject to such
Option, and the Restricted Period shall expire immediately with respect to
100 percent of the shares of Restricted Stock (including a waiver of any
applicable Performance Goals) and, to the extent practicable, such
acceleration of exercisability and expiration of the Restricted Period (as
applicable) shall occur in a manner and at a time which allows affected
Participants the ability to participate in the Change in Control transaction
with respect to the Shares subject to their Awards.
(b) In addition, in the event of a Change of Control, the
Committee may in its discretion and upon at least 10 days' advance notice to
the affected persons, cancel any outstanding Award and pay to the holders
thereof, in cash or stock, or any combination thereof, the value of such
Awards based upon the price per Share received or to be received by other
shareholders of the Company in the event.
(c) The obligations of the Company under the Plan shall be
binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of the Company, or upon any
successor corporation or organization succeeding to substantially all of the
assets and business of the Company. The Company agrees that it will make
appropriate provisions for the preservation of Participants' rights under
the Plan in any agreement or plan which it may enter into or adopt to effect
any such merger, consolidation, reorganization or transfer of assets.
12. Nonexclusivity of the Plan
Neither the adoption of this Plan by the Board nor the submission of this
Plan to the shareholders of the Company for approval shall be construed as
creating any limitations on the power of the Board to adopt such other
incentive arrangements as it may deem desirable, including, without
limitation, the granting of stock options otherwise than under this Plan,
and such arrangements may be either applicable generally or only in specific
cases.
13. Amendments and Termination
(a) Amendment and Termination of the Plan. The Board may amend, alter,
suspend, discontinue, or terminate the Plan or any portion thereof at any
time; provided that no such amendment, alteration, suspension,
discontinuation or termination shall be made without shareholder approval if
such approval is necessary to comply with any tax or regulatory requirement
applicable to the Plan (including as necessary to prevent the Company from
being denied a tax deduction on account of Section 162(m) of the Code); and
provided further that any such amendment, alteration, suspension,
discontinuance or termination that would impair the rights of any
Participant or any holder or beneficiary of any Option theretofore granted
shall not to that extent be effective without the consent of the affected
Participant, holder or beneficiary.
(b) Amendment of Award Agreements. The Committee may waive any conditions
or rights under, amend any terms of, or alter, suspend, discontinue, cancel
or terminate, any Award theretofore granted or the associated Award
Agreement, prospectively or retroactively; provided that any such waiver,
amendment, alteration, suspension, discontinuance, cancellation or
termination that would impair the rights of any Participant, holder or
beneficiary in respect of any Award theretofore granted shall not to that
extent be effective without the consent of the affected Participant; and
provided further that, without stockholder approval, the Committee may not
take any action that results in the "repricing" of any Option granted under
the Plan. For purposes of this Section 13(b) a "repricing" means any of the
following (or any other action that has the same effect of any of the
following): (i) amending or modifying the terms of an Option after the Date
of Grant in a manner that reduces the Option Price of such Option; (ii) any
other action that would either (A) be reportable on the Company's proxy
statement as Options which have been "repriced" (as such term is used in
Item 402 of Regulation S-K promulgated under the Exchange Act) or (B)
results in an Option being considered repriced under generally accepted
accounting principles; or (iii) canceling an Option at time when its Option
Price is equal to or less than the Fair Market Value of the Shares subject
to the Option, in exchange for another Option, Restricted Stock Award or any
other equity-based award. A cancellation and exchange described in clause
(iii) of the preceding sentence will be considered a "repricing" regardless
of whether (x) the Option, Restricted Stock Award or other equity-based
award is delivered simultaneously with the cancellation of the Option, (y)
it is reportable as a repricing in the Company's proxy statement or under
generally accepted accounting principles, and (z) the cancellation of the
Option was voluntary on the part of the Participant.
* * *
As adopted by the Board of Directors of Carnival Corporation as of
January 14, 2002 and amended as of September 25, 2002, and further amended
and restated as of April 17, 2003.
Exhibit 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of April 17, 2003 (the "Effective
Date"), by and between P&O Princess Cruises International, Ltd., a
corporation organized under the laws of the United Kingdom ("Company"),
and Peter Ratcliffe ("Executive"), referred to collectively as the
"Parties".
WHEREAS, Executive was and has been employed by Carnival plc,
formerly known as P&O Princess Cruises plc, ("Cplc") pursuant to a
Service Agreement dated September 2000 ("POPC Service Agreement"); and
WHEREAS, Cplc and Carnival Corporation ("Carnival" and, together
with Cplc, the "Dual Listed Companies") have entered into an Offer and
Implementation Agreement, dated January 8, 2003 (the "DLC Agreement"),
pursuant to which Cplc and Carnival have combined under a dual listed
company structure (the "Dual Listed Combination"); and
WHEREAS, the Company wishes to retain the services of Executive as
an employee of the Company for a period after the Dual Listed
Combination and set forth the terms of Executive's employment; and
WHEREAS, the Parties agree to terminate the POPC Service Agreement
and enter into this new Employment Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. TERM; CONDITION.
1.1. This Agreement terminates and supersedes the POPC Service
Agreement.
1.2. The Company agrees to employ Executive commencing on the
Effective Date until the termination of this Agreement pursuant to
Paragraph 12. Such employment term is hereinafter referred as the
"Employment Term".
2. DUTIES.
During the Employment Term, Executive shall have the position of
Chief Executive Officer of the Company reporting solely to the Boards of
Directors of Carnival and Cplc (collectively, the "Board") and to the
Chief Executive Officer and the Chief Operating Officer of the Dual
Listed Companies. Executive's duties shall be consistent with his
position and shall include primary authority and responsibility for the
"Covered Operations" (as defined below) along with such other duties,
consistent with his status and seniority, to which he may be lawfully
assigned by the Board from time to time. The "Covered Operations" are
the operations engaged in by the Company and its subsidiaries from time
to time, which on the Effective Date include the Princess, P&O Cruises,
Swan Hellenic, Ocean Village, and P&O Cruises (Australia) brands and any
other business conducted by Cplc immediately prior to the Effective Date
(other than its German operations); provided that the Parties hereby
agree that the Board has the authority to add to or take away from the
Company (and consequently from the Covered Operations) those operations
as it sees fit, subject to Executive's right to resign for "Good Reason"
(as defined in Paragraph 12.5) if the removal of operations from the
Company and from the Covered Operations constitutes Good Reason under
Paragraph 12.5.
2.1. During the Employment Term, Executive shall devote substantially
all of his working time to carry out such duties as are lawfully and
properly assigned to him from time to time pursuant to this Agreement;
provided, however, Executive may (i) serve on corporate, civic,
educational, philanthropic or charitable boards or committees,
(ii) deliver lectures, fulfill speaking engagements or teach at
educational institutions and (iii) manage personal investments, so long
as (a) such activities do not significantly interfere with the
performance of Executive's responsibilities hereunder and (b) any
service on a corporate board or committee is approved by the Chairman or
the Vice Chairman of the Board (which shall not be unreasonably
withheld).
2.2. Executive agrees to carry out the duties lawfully and properly
assigned to him from time to time pursuant to this Agreement in good
faith and to use good faith to comply with the rules and policies
established by the Dual Listed Companies from time to time for senior
executives, and shall be responsible for such duties as are commensurate
with his position.
2.3. Executive's services shall be performed primarily at the Company's
current offices in Santa Clarita, California, subject to reasonable
travel requirements consistent with Executive's duties hereunder.
2.4. Executive agrees to promptly provide the Board with all such
information as it may request in connection with the business or affairs
of the Company to the extent reasonably in Executive's possession,.
3. COMPENSATION.
3.1. Executive's annual gross base salary shall be US$1,100,000.00
("Base Salary"). The Base Salary shall be subject to withholding for
applicable employment taxes and other lawful deductions and shall be
pro-rated for any portion of a contract year that is less than a full
calendar year. The Base Salary shall be payable in accordance with the
Dual Listed Companies' regular payroll practices for senior executives.
3.2. In addition to the Base Salary set forth in Paragraph 3.1 hereof,
Executive shall receive an annual bonus in respect of each fiscal year
of the Company ending during the Employment Term equal to 0.25% of net
income from the Covered Operations for that fiscal year (each, a
"Bonus"). For purposes of determining each Bonus, net income from
Covered Operations will be determined in accordance with generally
accepted accounting principles in the United States and will exclude any
items determined by the Company's outside auditors to be reportable as
"extraordinary, unusual or infrequently occurring events and
transactions" in accordance with U.S. Accounting Principles Board
Opinion No. 30. The Company will make reasonable adjustments to net
income from Covered Operations to take into account (1) the exclusion of
the German operations from the Covered Operations, (2) any changes to
the accounting practices and policies of the Company after the date
hereof, other than as a result of the Dual Listed Combination, and (3)
costs associated with the Dual Listed Combination. The Company will
also make reasonable adjustments to net income from Covered Operations
if, as a result of a change in the Company's fiscal year, such net
income is determined over a period that is more or less than 12 calendar
months. For the avoidance of doubt, no Bonus may be less than US$0 and
the Bonus for the 2003 fiscal year will not be affected by the fact that
the Employment Term started during the 2003 fiscal year.
Fifty percent (50%) of any Bonus shall be payable in cash at such
time as bonuses are regularly paid to executives of the Dual Listed
Companies in respect of the applicable fiscal year and the Company
undertakes to make a recommendation to the "Trustee" (as defined in the
P&O Princess Cruises Deferred Bonus and Co-Investment Matching Plan, as
amended by a resolution of the Board of Directors of P&O Princess
Cruises plc on 7 January 2003 (the "Cplc Bonus Plan")) that the
remaining fifty percent (50%) of any such Bonus be payable in the form
of a conditional right to receive shares of Cplc (a "Bonus Share Award")
granted under and pursuant to the terms of the Cplc Bonus Plan;
provided, however, that if such Bonus Share Award would exceed the limit
established by rule 2.2 of the Cplc Bonus Plan, the excess shall be
payable in cash; and further provided that if the Trustee determines not
to grant a Bonus Share Award in respect of the remaining fifty percent
(50%) of such Bonus, the remaining portion of such Bonus shall be
payable in cash as soon as is reasonably practicable thereafter. A
Bonus Share Award granted pursuant to this Paragraph 3.2 shall be
subject to such other terms and conditions as are set forth in Exhibit A
attached hereto and the rules of the Cplc Bonus Plan attached hereto as
Exhibit B. (For the avoidance of doubt, the term Bonus Share Award
shall have the same meaning as a "Share Award," as defined under the
Cplc Bonus Plan.)
3.3. Subject to satisfactory performance, for each calendar year
ending in the Employment Term, Executive shall receive a non-qualified
stock option to purchase 50,000 shares of Carnival common stock pursuant
to the terms of the amended and restated Carnival Corporation 2002 Stock
Plan, as amended and restated as of April 14, 2003 (the "Stock Plan").
Executive shall be granted such stock option at the same time that other
senior executives of the Dual Listed Companies are granted stock options
under the Stock Plan. Each stock option granted pursuant to this
Paragraph 3.3 shall be subject to the terms and conditions set forth in
a Nonqualified Stock Option Agreement substantially in the form attached
hereto as Exhibit C. For the avoidance of doubt, the stock option grant
in respect of the 2003 calendar year will be made without prorating.
3.4. The Company may cause an affiliate to pay all or a part of the
Base Salary or Bonus. The Executive and the Company will cooperate
reasonably with each other in this regard.
4. EXISTING STOCK AWARDS.
4.1. The Company confirms that, in accordance with rule 14.1A of the
Cplc Bonus Plan, the Dual Listed Combination has caused all the "LTIP
Awards," "Share Awards" and "Matching Awards" (as each such term is
defined in the Cplc Bonus Plan) granted to Executive prior to December
31, 2002 to become exercisable in full.
4.2. Executive confirms that he has agreed that his Share Award
relating to his 2002 bonus will not be granted until after the Dual
Listed Combination. The Company agrees that, within three months
following the date hereof, Executive will be granted in respect of his
2002 bonus a 2003 Share Award with a value of $400,000 (the "2003 Share
Award") and a related Matching Award (the "2003 Matching Award"). The
Retention Period for the 2003 Share Award and the 2003 Matching Award
will end on the announcement of the audited financial results of the
Dual Listed Companies for the year ended November 30, 2005.
4.3. The proportion of the 2003 Matching Award that shall be
exercisable will be based on the Dual Listed Companies' EPS Growth (as
defined below):
Companies' EPS Growth % of Matching Award Capable of
Release or Exercise
50% or greater 100%
15% 25%
Below 15% 0
Where the Dual Listed Companies' EPS Growth is between 50% and 15%, the
percentage of the 2003 Matching Award that is capable of exercise shall be
calculated on a straight line basis between 100% and 25%.
For this purpose, "EPS Growth" shall be the percentage increase in the Dual
Listed Companies' earnings per share for the year ended November 30, 2005
compared with pro-forma earnings per share for 2002 of $1.69.
4.4. If the Executive resigns without "Good Reason" (as defined below)
in accordance with Paragraph 12.6, is terminated by the Company without
"Cause" or for "Disability" (each as defined below), dies or terminates
for Good Reason before the end of the Retention Period for the 2003
Share Award and the 2003 Matching Award, the Company agrees that the
Remuneration Committee of the Board will recommend to the Trustee of the
Cplc Bonus Plan that the Trustee should agree that the Executive has
retired within the meaning of rule 13.2(b) of the Cplc Bonus Plan, and
that the 2003 Share Award and the 2003 Matching Award will remain
outstanding in accordance with rule 13.2 of the Cplc Bonus Plan and be
exercisable in accordance with rules 13.2 and 13.3 of the Cplc Bonus
Plan; provided, however, in the event that the Executive's employment is
terminated for any of the foregoing reasons within the twelve (12) month
period beginning on the date of grant of the 2003 Share Award and
Matching Award, the Company also agrees that the Remuneration Committee
of the Board will recommend to the Trustee of the Cplc Bonus Plan that
the 2003 Matching Award shall not automatically lapse and that the rules
13.2 and 13.3 shall apply to the 2003 Matching Award. In the event that
Executive terminates employment during the Retention Period for any
reason other than the foregoing, the 2003 Share Award and 2003 Matching
Award shall automatically lapse in accordance with rule 13.4 of the Cplc
Bonus Plan. Subject to applicable law, if the Trustee does not agree
with the Remuneration Committee's recommendation, the Company will make
the Executive whole on an after-tax basis.
4.5 The Company confirms that the board of directors of Cplc has
exercised its discretion to allow all options granted to the Executive
before December 31, 2002 to become exercisable in full at any time
between the Dual Listed Combination and the scheduled 10-year expiry
date of each set of options; provided that the Board will exercise its
absolute discretion in accordance with rule 6.2(f) of the Cplc Executive
Share Option Plan, in the event of Executive's termination before
exercise, to cause any such options outstanding at that time to expire
on the later of 12 months following termination (but in no event later
than the 10-year expiry date) or 42 months following their grant.
Furthermore, the Company confirms that the board of directors of Cplc
has exercised its discretion to allow the options granted to the
Executive on April 15, 2003 to be exercised in full, without reference
to any vesting schedule or performance target, at any time between three
years after the date of grant and the 10-year expiry date of the
options; provided that the Board will exercise its absolute discretion
in accordance with rule 6.2(f) of the Cplc Executive Share Option Plan,
in the event of Executive's termination before exercise, to cause any
such options outstanding at that time to expire on the later of 12
months following such termination (but in no event later than the 10-
year expiry date) or 42 months following their grant.
5. ADDITIONAL BENEFITS.
5.1. The Company shall pay directly, or reimburse Executive, for all
reasonable expenses and disbursements incurred by him in connection with
his performance of his duties and obligations hereunder during the
Employment Term. For such purposes, Executive shall submit to the
Company, at such periodic intervals as designated by the Dual Listed
Companies' rules and policies for senior executives, reports of such
expenses and other disbursements in the form normally utilized.
5.2. Executive shall be entitled to paid vacation during the
Employment Term hereunder in accordance with the Dual Listed Companies'
policies in effect from time to time for senior executives, but in no
case shall he be entitled to less than thirty (30) days of paid vacation
per year. The Company acknowledges that Executive has fifty (50) days
of accrued vacation as of the Effective Date. Accrued but unused
vacation may be carried forward to subsequent years; provided that
Executive may take no more than 40 days of vacation in any calendar
year.
5.3. During the Employment Term, Executive shall be accorded the right
to participate in and receive benefits under and in accordance with the
provisions of the Company's medical and dental insurance or other
similar plans or programs of the Company either in existence as of the
date hereof or hereafter adopted for the benefit of any of its executive
employees.
5.4. During the Employment Term, the Company shall provide Executive
with a car of a type and age appropriate to his status and
responsibilities. The Company will bear the cost of insuring and
maintaining the car. Alternatively and at the election of the
Executive, during the Employment Term the Company shall provide the
Executive with a car allowance of US$25,000.00 per year. The car
allowance shall not constitute pensionable earnings and shall be payable
in monthly arrears at the same time Executive's Base Salary is paid.
5.5. During the Employment Term, the Company shall pay membership fees
for two (2) recreational and/or health clubs of a type appropriate to
Executive's status and responsibilities. The payment of such membership
fees shall not constitute pensionable earnings.
6. PENSION.
6.1 Subject to (a) the consent of the board of P&O Princess Cruises
Pension Scheme Trustee Limited (the "Trustee") and (b) applicable law,
and unless Executive agrees otherwise, Executive shall continue to be an
employer nominated director of the Trustee of the P&O Princess Cruises
Pension Scheme (the "UK Pension Plan") during the Employment Term and
for a period of two (2) years thereafter.
6.2. Executive shall continue at least at his current level of
participation in (a) the UK Pension Plan and (b) any United States
pension plan in which he participated immediately prior to the Effective
Date (the "US Plan", and collectively with the UK Pension Plan, the
"Plans"), and all benefits to which Executive is entitled shall be based
on the benefit structure and terms described in the Plans as in effect
immediately prior to the Effective Date (giving effect to the letter
agreements attached hereto as Exhibit D, which modify the UK Pension
Plan). For purposes of the UK Pension Plan and Executive's pension
benefit thereunder, Executive's pensionable earnings shall be $1,100,000
or any greater annual rate of Base Salary Executive earns during the
Employment Term.
6.3. In the event any significant change occurs to any of the Plans
which adversely affects Executive the Company shall promptly make
arrangements to maintain (either within or outside of the Plans) the
benefit structure and terms applicable to Executive before giving effect
to the significant change. In the event of such a significant change to
the UK Pension Plan, the Company will provide Executive with reasonably
acceptable equivalent security for such terms in respect of the Plan as
to which the significant change has occurred. For this purpose,
"significant changes" to a Plan shall be determined by reference to the
terms in the Plans and the agreements included as Exhibit D (which
modify the terms of the UK Pension Plan), and include, but are not
limited to, any change in the early retirement provisions of a Plan, a
combination of the Plan with some other pension scheme, a significant
change in the number of the Plan's participants, a material change in
the amount, timing or method of calculation or payment of benefits and,
in respect of the UK Pension Plan, a significant change to the
investment policy of the Plan and a decrease in the funding level of the
Plan to below 80% (calculated in accordance with the provisions of U.K.
Financial Reporting Standard No. 17). For the avoidance of doubt,
equivalent security for the benefit structure under a Plan may include
purchasing annuities from insurance companies reasonably acceptable to
Executive. If the Company provides equivalent security, the Parties
agree to work together in good faith to ensure that Executive does not
receive payments or benefits in excess of the benefit he is entitled to
receive under the UK Pension Plan pursuant to Section 6.2 hereof.
6.4. If Executive is levied with additional tax liability (including
interest and penalties) as a result of any significant changes to one or
both of the Plans or any arrangement made pursuant to Section 6.3 of
this Agreement, the Company will make an additional payment to Executive
such that (after payment by Executive of all taxes, including income
taxes) Executive retains an amount equal to such additional tax
liability.
6.5. Carnival unconditionally and irrevocably guarantees the prompt
payment and performance when due of all present and future obligations
of the Company (of all kinds, whether absolute or contingent, joint or
several or secured or unsecured) in relation to the Executive's rights
and benefits under the US Plan, including the obligations of the Company
under this Agreement. This guarantee is absolute and shall not be
affected by any modification, amendment or supplement to the US Plan,
any insolvency, bankruptcy or other similar proceeding affecting the
Company or resulting in any release or discharge of any obligation of
the Company in relation to the US Plan, any compromise, waiver or
release of any obligation of the Company (by operation of law or
otherwise) or any other act or omission by the Company or Executive.
6.6. The provisions contained in this Paragraph 6 shall continue to
apply after Executive's termination (for any reason) until neither
Executive nor Executive's spouse is entitled to any benefits from either
of the Plans; provided that Section 6.1 shall cease to apply upon
Executive's death.
7. DISABILITY.
7.1. During the Employment Term, if Executive, in the opinion of the
Chairman or Vice-Chairman of the Board, as confirmed by a physician
selected by the Company and reasonably acceptable to the Executive or
his authorized representative, shall become physically or mentally
incapacitated to perform his duties hereunder for a period totaling more
than six (6) months in any continuous twelve (12) month period, the
Company shall have the right, by written notice, to terminate the
Executive's employment hereunder by providing six (6) months written
notice to Executive. Executive agrees to submit himself for appropriate
medical examination to a physician of the Company's designation (and
reasonably acceptable to Executive or his authorized representative) and
at the Company's expense as necessary for purposes of this
Paragraph 7.1. Except as provided in this Paragraph 7.1, any absence
resulting from Executive's incapacity due to physical or mental illness
will not affect the obligations of the other Parties under this
Agreement.
7.2. The obligations of the Company under Paragraph 7.1 may be
satisfied, in whole or in part, by payments to the Executive under
disability insurance provided by the Company, and under laws providing
disability benefits for employees.
8. TRADE SECRETS AND EMPLOYEE KNOWLEDGE.
8.1. Executive expressly agrees and understands that the Company, the
Dual Listed Companies and their respective subsidiaries and affiliates
(the "Companies") own and/or control information and material which is
not generally available to third parties and which they consider
confidential, including without limitation, methods, products,
processes, procedures, practices, trade secrets and other information
applicable to their business and that they may from time to time
acquire, improve or produce additional methods, products, processes,
trade secrets and other information (collectively, the "Confidential
Information"). Executive hereby acknowledges that each element of the
Confidential Information constitutes a unique and valuable asset of the
Companies, and that certain items of the Confidential Information have
been acquired from third parties upon the express condition that such
items would not be disclosed other than to the Companies and their
officers and agents in the ordinary course of its business.
8.2. Executive hereby acknowledges that disclosure of the Companies'
Confidential Information to anyone other than in the course of the
performance of Executive's duties hereunder would result in irreparable
and continuing damage to the Companies. Accordingly, during the
Employment Term, the Executive agrees to use and disclose the
Confidential Information only for the benefit of the Companies and in
the course of the performance of his duties hereunder and, if any
restrictions on its use or disclosure are imposed by the Board or the
Chief Executive Officer or the Chief Operating Officer of the Dual
Listed Companies, in accordance with such restrictions. After the
Employment Term, without the prior written consent of the Chairman or
Vice-Chairman of the of the Board, Executive will not use, and will not
divulge, reveal or communicate, directly or indirectly, any element of
the Confidential Information to any other party.
8.3. Executive further agrees that within five (5) days after the
Company's request or within five (5) days after any termination of
employment hereunder, he shall surrender to the Company any and all
documents, memoranda, books, papers, letters, price lists, notebooks,
reports, logbooks, code books, salesmen records, customer lists,
activity reports, video or audio recordings, computer programs and any
and all other data and information and any and all copies thereof
relating to the Companies' business or any Confidential Information.
8.4. Notwithstanding anything to the contrary in this Paragraph 8, the
provisions of Paragraph 8 shall not apply to:
(a) matters that are generally known to the public or in the industry;
(b) information disclosed to Executive after his employment terminates
by another person without the Executive's knowledge of any limits on the
person's right to disclose the information; provided that this Paragraph
8 shall apply to such information at and after the time that Executive
become aware of such limits; and
(c) information that Executive is legally required to disclose.
In addition, nothing in this Paragraph 8 shall limit (i)
Executive's ability to disclose Confidential Information to his legal
counsel or any arbitrator or court in connection with any dispute
between Executive, on the one hand, and any of the Companies or any
related party (including any affiliate, employee or director), on the
other hand, or (2) Executive using his own personal skill in any
business in which he may lawfully be engaged after the Employment Term,
so long as such use does not involve the prohibited disclosure to any
party of Confidential Information.
8.5. The provisions of this Paragraph 8 shall expressly survive the
expiration or termination of this Agreement.
9. RESTRICTIVE COVENANT.
9.1. The services of Executive are unique, extraordinary and essential
to the business of the Companies, particularly in view of Executive's
access to the Confidential Information. Accordingly, in consideration
of the payments to be made and benefits to be provided on termination
under Paragraph 12, Executive agrees that if his employment hereunder
shall be terminated at any time, for any reason, Executive shall not,
within the United States or its territories, or the United Kingdom, or
anywhere else in the world in which the Companies do business, at any
time within twelve (12) months after such termination of employment,
without the prior written approval of the Chairman or Vice-Chairman of
the Board, directly or indirectly:
(a) engage in any business activity competitive with the business of
any of the Companies, or serve as an officer, director, owner,
consultant or employee of any organization then in competition with any
of the Companies; provided that (i) Executive shall be permitted to own
securities representing up to five percent (5%) of the voting power of
any public company and (ii) Executive shall be permitted to continue and
renew any directorship that was approved in compliance with Paragraph
2.1 of this Agreement before his termination; or
(b) solicit, either directly or indirectly, any director level or
higher level employee of any of the Companies who was an employee of any
of the Companies at the time of Executive's employment termination
hereunder.
9.2. In the event that the provisions of this Paragraph 9 should ever
be adjudicated to exceed the time, geographic or other limitations
permitted by applicable law in any jurisdiction, then such provisions
shall be deemed reformed in such jurisdiction to the maximum time,
geographic or other limitations permitted by applicable law.
9.3. The restrictions entered into by Executive in Paragraphs 8.2,
8.3, 9.1(a) and 9.1(b) are given to the Company for itself and as
trustee each of the other Companies and Executive agrees that he will at
the request and cost of the Company enter into a further agreement with
any of the Companies (in form and substance reasonably acceptable to
Executive) whereby he will accept restrictions corresponding to the
restrictions in this Agreement; provided that any such further agreement
which is in form and substance substantially identical to one or more of
such Paragraphs shall be deemed to be reasonably acceptable to
Executive. The Company declares that insofar as these restrictions
relate to any of Companies other than the Company, it holds the benefit
of them as trustee. In exercising any right as trustee hereunder the
Company shall be entitled to limit the action it takes to such action as
it may, in its absolute discretion, consider reasonable.
9.4. the restrictions entered into by Executive in Paragraphs 8.2,
8.3, 9.1(a) and 9.1(b) are separate and severable and in the event of
any such restriction being determined as being uneforceable in whole or
in part for any reason such unenforceability shall not affect the
enforceability of the remaining restrictions or, in the case of part of
a restriction being unenforceable, the remainder of that restriction.
10. INJUNCTIVE RELIEF.
Executive acknowledges and agrees, that, in the event he violates
any provision of Paragraphs 8 or 9 of this Agreement, the Company will
be without an adequate remedy at law and immediately entitled to seek
enforcement of all such provisions by temporary or permanent injunctive
or mandatory relief obtained in any proceeding instituted in any court
of competent jurisdiction without the necessity of proving damages and
without prejudice to any other remedies for damages or otherwise which
it may have at law or in equity.
11. INTELLECTUAL PROPERTY.
11.1. All intellectual property and know-how rights (including, but not
limited to, copyright, database rights, rights in inventions or
processes, business methods or designs) created by the Executive in the
course of rendering services to the Company during the Employment Term
shall vest absolutely in the Company to the exclusive use thereof.
11.2. Executive agrees and undertakes that at any time during or after
the termination of the Employment Term he will execute such deeds or
documents and do all such things as the Company deems reasonably
necessary or desirable to substantiate its rights in respect of the
matters referred to in Paragraph 11.1, including for the purpose of
obtaining letters, patents or other privileges in all such countries as
the Company may require. All such deeds, documents and things shall be
at the expense of the Company.
12. TERMINATION AND SEVERANCE.
12.1. This Agreement and the Employment Term will terminate immediately
upon the death of Executive.
12.2. The Company may, in its sole discretion, terminate this
Agreement and the Employment Term without "Cause" (as defined in
Paragraph 12.4 below) by giving written notice to Executive that it is
exercising its rights under this Paragraph 12.2 as of the date specified
in such notice ("Termination Date"). In such a case, the Company shall
pay Executive "Severance" (as defined in Paragraph 12.3 below).
12.3. For purposes of this Paragraph 12, "Severance" means:
(a) (i) unpaid Base Salary through the Termination Date, (ii) Base
Salary for any accrued but untaken vacation through the Termination
Date, (iii) any accrued expense reimbursements and other cash
entitlements through the Termination Date and (iv) other than in the
case of a termination for Cause, any unpaid Bonus for a fiscal year
ending before the Termination Date (collectively, the "Accrued
Payments");
(b) Base Salary the Executive would have been entitled to receive under
this Agreement during the twelve (12) month period commencing on the
Termination Date (the "Severance Period") had his employment not been
terminated;
(c) A bonus equal to the Bonus paid for the last fiscal year completed
before the Termination Date (the bonus under this Paragraph 12.3(c) will
be paid entirely in cash); and
(d) Executive shall be entitled the benefits listed in Paragraphs 5.3,
5.4 and 5.5 during the Severance Period; provided the benefits listed in
Paragraph 5.3 shall cease earlier than the end of this Severance Period
upon Executive becoming eligible for similar benefits from another
employer.
Any Severance shall be payable in equal monthly installments over
the Severance Period and shall be subject to such deductions as may be
required by law. Any entitlement that Executive has or may have under
the Plans, the Stock Plan, the Stock Awards Plan and any other stock,
pension, compensation, employee benefit or welfare plan, program or
agreement shall be determined in accordance with the terms of such plan,
program or agreement (collectively, the "Accrued Plan Benefits").
Notwithstanding the above, any Severance shall be payable only if
Executive executes a release substantially in the form attached hereto
as Exhibit E and any revocation period described in such release has
expired.
12.4. The Company may also terminate this Agreement and the Employment
Term for "Cause" (as defined below) immediately and without any
liability to make any further payment to Executive (other than amounts
accrued, but unpaid, as of the date of termination, including without
limitation the Accrued Payments and the Accrued Plan Benefits). For
purposes of this Agreement, "Cause" means any of the following acts:
(a) Executive's conviction of, or plea of guilty to, a felony (other
than a road traffic offense) or another crime involving theft or
conversion of significant property of the Company;
(b) Executive's failure to substantially perform his duties under this
Agreement and such failure not being remedied after written demand for
substantial performance has been given by the Board or the Chairman or
Vice Chairman of the Board that specifically identifies how Executive
has failed (including, but not limited to, his disregard of any lawful
directives of the Board or the Chairman or Vice Chairman of the Board,
but excluding any such failure resulting from Executive's incapacity due
to a physical or mental injury or illness or any such failure which is
not willful after any Party gives notice of termination of this
Agreement);
(c) Executive's illegal or gross misconduct in connection with the
performance his duties and responsibilities hereunder, which, in either
case results in substantial damage to any of the Companies which has
material operations or assets; or
(d) Executive's willful and material breach of Paragraph 8 of this
Agreement;
provided, however, that "Cause" shall not exist unless the Company
exercises its right to terminate Executive's employment pursuant to this
Paragraph 12.4 within ninety (90) days after the earliest date on which
any member of the Board who is not a party to the act or omission giving
rise to the existence of Cause actually knew of such act or omission.
For purposes of this provision, no act or failure to act, on the part of
Executive, shall be considered "willful" unless it is done, or omitted
to be done, by Executive in bad faith or without reasonable belief that
Executive's action or omission was in the best interests of the Dual
Listed Companies. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board (or upon the
instructions of the Chairman or Vice-Chairman of the Dual Listed
Companies) or based upon the advice of counsel for the Dual Listed
Companies shall be conclusively presumed to be done, or omitted to be
done, by Executive in good faith and in the best interests of the Dual
Listed Companies.
12.5. Executive may terminate this Agreement and the Employment Term
for "Good Reason" (as defined below) and upon such termination the
Company shall pay Executive "Severance" (as defined in Paragraph 12.3
above). For purposes of this Agreement, "Good Reason" means any of the
following events:
(a) Executive's failure to have primary authority and responsibility
for the operations of the Princess brand as in existence on the
Effective Date;
(b) Any failure to provide Executive with the position, authority,
duties or reporting relationships contemplated by Paragraph 2 or the
provision of duties inconsistent therewith; provided that the taking
away of operations from the Company in accordance with the proviso to
the third sentence of Paragraph 2 hereof shall not be included in this
clause (b);
(c) any material breach of this Agreement by the Company;
(d) Executive ceasing to be a member of the board of directors of either
Carnival or Cplc other than as a result of his effective resignation; or
(e) requiring Executive to relocate his principal place of employment
more than fifty (50) miles from the Company's offices on the Effective
Date in Santa Clarita, California;
provided, however, that a termination by Executive for Good Reason
shall be effective only if, within thirty (30) days following
Executive's actual knowledge of the circumstances that gave rise to Good
Reason, Executive delivers written notice to the Company specifying the
circumstances that gave rise to Good Reason and, in the case of clause
(b) or (c), the Company fails to cure such circumstances within thirty
(30) after its receipt of such notice.
12.6. Executive may also terminate this Agreement and the Employment
Term without Good Reason on three months' written notice to the Company.
Upon such termination, the Company shall pay to the Executive any
amounts accrued, but unpaid, as of the date of termination, including
without limitation the Accrued Payments and the Accrued Plan Benefits.
12.7. On termination of the Employment Term for whatever reason (and
whether in breach of contract or otherwise) the Executive will:
(a) Comply with the terms of Paragraph 8.3 regarding the return of
Company property;
(b) Immediately resign from any office he holds with any of the
Companies (and from any related trusteeships, except as otherwise
provided in Paragraph 6) without any compensation for loss of office.
Should Executive fail to do so he hereby irrevocably authorizes the
Company to appoint some person in his name and on his behalf to sign any
documents and do any thing to give effect to his resignation from
office; and
(c) Cease representing himself as being an agent or employee of the
Company or the Dual Listed Companies or their subsidiaries and
affiliates (other than the trusteeship provided in Paragraph 6, if
applicable).
12.8. Executive acknowledges and agrees that during the Employment
Term he may be granted rights under any profit sharing, share incentive,
share option, bonus or phantom option scheme sponsored or maintained by
any of the Companies with respect to shares in one or more of the
Companies. If, upon termination of this Agreement and the Employment
Term, whether lawfully or in breach of contract, Executive loses any of
the rights or benefits under such plans or schemes (including any rights
or benefits that Executive would not have lost had the Employment Term
not been terminated) Executive shall not by virtue of this Agreement be
entitled, by way of compensation for loss of office or otherwise, to any
compensation for the loss of any rights under any such plan or scheme.
For the avoidance of doubt, this Paragraph 12.8 in no way limits the
operation of Article IV of this Agreement.
13. RIGHT TO PAYMENTS, ETC.
13.1. To the extent permitted by law, Executive shall not have any
power of anticipation, alienation or assignment of payments contemplated
hereunder, and all rights and benefits of Executive shall be for the
sole personal benefit of Executive, and no other person shall acquire
any right, title or interest hereunder by reason of any sale,
assignment, transfer, claim or judgment or through the institution of
bankruptcy proceedings against Executive. Neither shall Executive
through the performance of services for the Company acquire any
proprietary interest whatsoever in the Company. Notwithstanding the
preceding, Executive's spouse will be a third-party beneficiary of
Paragraph 6 (but no other provision) of this Agreement and will have
rights thereunder in respect of those of the Plans to which she remains
entitled or potentially entitled to benefits, and only for so long as
she remains so entitled or potentially entitled.
13.2. In the event this Agreement the Employment Term is terminated,
Executive shall be under no obligation to seek other employment or
otherwise mitigate the obligations of the Company under this Agreement
and there shall be no offset against amounts due Executive under this
Agreement on account of amounts purportedly owing by Executive to the
Company.
14. RIGHT TO CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
14.1. If, upon retirement or any other termination of the Executive's
employment, it is determined (as hereafter provided) that any payment or
distribution by any of the Companies to or for the benefit of Executive
pursuant this Agreement or any other agreement, including, without
limitation, any stock option, stock appreciation right or similar right,
or the lapse or termination of any restriction on or the vesting or
exercisability of any of the foregoing (hereinafter a "Payment"), would
be subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended ("Code"), or to any similar tax imposed
by state or local law, or any interest or penalties with respect to such
excise tax (such tax or taxes, together with any such interest and
penalties, are hereafter collectively referred to as the "Excise Tax"),
then Executive will be entitled to receive an additional payment or
payments (a "Gross-Up Payment") in an amount such that, after payment by
Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including any Excise Tax, imposed upon the
Gross-Up Payment, Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
14.2. Subject to the provisions of clause 14.6. below, all
determinations required to be made under this Section 14, including
whether an Excise Tax is payable by Executive and the amount of such
Excise Tax and whether a Gross-Up Payment is required and the amount of
such Gross-Up Payment, will be made by an internationally recognized
firm of certified public accountants (the "Accounting Firm") selected by
the Dual Listed Companies in their reasonable discretion. The Dual
Listed Companies will direct the Accounting Firm to submit its
determination and detailed supporting calculations to both the Dual
Listed Companies and Executive within fifteen (15) calendar days after
the date of the change in control of the Company or the Dual Listed
Companies, as applicable (other than any change of control that occurs
in connection with the consummation of the Dual Listed Combination), or
the date of Executive's termination of employment, if applicable, and
any other such time or times as may be requested by the Dual Listed
Companies or Executive. If the Accounting Firm determines that any
Excise Tax is payable by Executive, the Company will pay the required
Gross-Up Payment to Executive prior to the date on which such Exercise
Tax is payable by Executive. If the Accounting Firm determines that no
Excise Tax is payable by Executive, it will, at the same time as it
makes such determination, furnish Executive with an opinion that he has
substantial authority not to report any Excise Tax on his federal,
state, local income or other tax return. Any determination by the
Accounting Firm as to the amount of the Gross-Up Payment will be binding
upon the Company and Executive. As a result of the uncertainty in the
application of Section 4999 of the Code and the possibility of similar
uncertainty regarding applicable state or local tax law at the time of
any determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should
have been made (an "Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Dual Listed
Companies exhausts or fails to pursue its remedies pursuant to
Section 14.6. below and Executive thereafter is required to make a
payment of any Excise Tax, the Dual Listed Companies will direct the
Accounting Firm to determine the amount of the Underpayment that has
occurred and to submit its determination and detailed supporting
calculations to both the Dual Listed Companies and Executive as promptly
as possible. Any such Underpayment will be promptly paid by the Company
to, or for the benefit of, Executive within thirty (30) business days
after receipt of such determination and calculations.
14.3. The Dual Listed Companies and Executive will each provide the
Accounting Firm access to and copies of any books, records and documents
in the possession of the Dual Listed Companies (or their subsidiaries)
or Executive, as the case may be, reasonably requested by the Accounting
Firm, and otherwise cooperate with the Accounting Firm in connection
with the preparation and issuance of the determination contemplated by
Section 14.2 above.
14.4. The federal, state and local income or other tax returns filed by
Executive will be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax
payable by Executive. Executive will make proper payment of the amount
of any Excise Tax, and at the request of the Dual Listed Companies,
provide to the Dual Listed Companies true and correct copies (with any
amendments) of his federal income tax return as filed with the Internal
Revenue Service and corresponding state and local tax returns, if
relevant, as filed with the applicable taxing authority, and such other
documents reasonably requested by the Dual Listed Companies, evidencing
such payment. If prior to the filing of Executive's federal income tax
return, or corresponding state or local tax return, if relevant, the
Accounting Firm determines that the amount of the Gross-Up Payment
should be reduced, Executive will within five (5) business days pay to
the Company the amount of such reduction.
14.5. The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated by
Sections 14.2 and 14.4 above will be borne by the Company. If such fees
and expenses are initially advanced by Executive, the Company will
reimburse Executive the full amount of such fees and expenses within
five (5) business days after receipt from Executive of a statement
therefor and reasonable evidence of his payment thereof.
14.6 Executive will notify the Dual Listed Companies in writing of any
claim by the Internal Revenue Service that, if successful, would require
the payment by the Company of a Gross-Up Payment. Such notification
will be given as promptly as practicable but no later than ten (10)
business days after Executive actually receives notice of such claim and
Executive will further apprise the Dual Listed Companies of the nature
of such claim and the date on which such claim is requested to be paid
(in each case, to the extent known by Executive). Executive will not
pay such claim prior to the earlier of (i) the expiration of the 30-
calendar-day period following the date on which he gives such notice to
the Dual Listed Companies and (ii) the date that any payment of amount
with respect to such claim is due. If the Dual Listed Companies notify
Executive in writing prior to the expiration of such period that it
desires to contest such claim, Executive will:
(a) provide the Dual Listed Companies with any written records or
documents in his possession relating to such claim reasonably requested
by the Dual Listed Companies;
(b) take such action in connection with contesting such claim as the
Dual Listed Companies may reasonably request in writing from time to
time, including, without limitation, accepting legal representation with
respect to such claim by an attorney competent in respect of the subject
matter and reasonably selected by the Dual Listed Companies;
(c) cooperate with the Dual Listed Companies in good faith in order to
effectively contest such claim; and
(d) permit the Dual Listed Companies to participate in any proceedings
relating to such claim;
provided, however, that the Company will bear and pay directly all
costs and expenses (including interest and penalties) incurred in
connection with such contest and will indemnify and hold harmless
Executive, on an after-tax basis, for and against any Excise Tax or
income tax, including interest and penalties with respect thereto,
imposed as a result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of this
Section 14.6, the Dual Listed Companies will control all proceedings
taken in connection with the contest of any claim contemplated by this
Section 14.6 and, at their sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim (provided that Executive may
participate therein at his own cost and expense) and may, at their
option, either direct Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and Executive
agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one
or more appellate courts, as the Dual Listed Companies will determine;
provided, however, that if the Dual Listed Companies direct Executive to
pay the tax claimed and sue for a refund, the Company will advance the
amount of such payment to Executive on an interest-free basis and will
indemnify and hold Executive harmless, on an after-tax basis, from any
Excise Tax or income tax, including interest or penalties with respect
thereto, imposed with respect to such advance; and provided further,
however, that any extension of the statute of limitations relating to
payment of taxes for the taxable year of Executive with respect to which
the contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Dual Listed Companies's control of
any such contested claim will be limited to issues with respect to which
a Gross-Up Payment would be payable hereunder and Executive will be
entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.
14.7. If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section 14.6 above, Executive receives any refund
with respect to such claim, Executive will (subject to the Dual Listed
Companies's complying with the requirements of Section 14.6 above)
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after any taxes applicable thereto).
If, after the receipt by Executive of an amount advanced by the Company
pursuant to Section 14.6 above, a determination is made that Executive
will not be entitled to any refund with respect to such claim and the
Dual Listed Companies do not notify Executive in writing of their intent
to contest such denial or refund prior to the expiration of thirty (30)
calendar days after such determination, then such advance will be
forgiven and will not be required to be repaid and the amount of such
advance will offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid pursuant to this Section 14.
15. NOTICES, ETC.
Any notice required or permitted to be given under this Agreement
shall be deemed given (a) on the business day sent, when delivered by
hand during normal business hours, (b) on the business day after the
business day sent, if delivered by an internationally recognized
overnight courier, or (c) on the third business day after the business
day sent if delivered by registered or certified mail, return receipt
requested, in each case to the following address (or to such other
addresses as may be specified by notice that conforms to this Paragraph
15): (1) if to Executive, at the last primary residential address
designated by Executive on the Company's personnel records or, if during
the Employment Term, at Executive's primary office or (2) if to the
Company, at its Corporate Headquarters, attention of the Chairman or
Vice-Chairman and the General Counsel.
16. AGREEMENT SEVERABLE.
In the event that any provision of this Agreement is determined to
be illegal, unenforceable or void by a court of competent jurisdiction,
such determination shall solely affect such provisions and not impair
the remaining provisions hereof.
17. ASSIGNMENT; SUCCESSORS.
This Agreement may not be assigned by any Party without the prior
written consent of the other, except that the Company may assign this
Agreement in whole or in part to Carnival without the consent of the
Executive.
18. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of Florida, without giving effect
to principles of conflicts of law. Any dispute or disagreement arising
out of this Agreement or a claimed breach thereof, except that which
involves a right to injunctive relief, shall be resolved by arbitration
with a single arbitrator who is to administer the case him or herself,
applying the American Arbitration Association Employment Arbitration
rules. The situs of the Arbitration shall be Miami Dade County,
Florida, to the exclusion of any other situs. The Arbitrator's
decisions shall be final and binding upon the parties and judgment may
be entered in any court of competent jurisdiction.
19. INDEMNIFICATION
Executive shall be entitled to indemnification for and against any
actual losses, liabilities, damages, deficiencies, cost or expenses
(including attorneys' fees) incurred in connection with or arising out
of Executive's duties as a member of the Board in accordance with the
terms of the Indemnification Agreement attached hereto as Exhibit F. In
addition, Executive shall be entitled to indemnification by the Company
in respect of his duties as an officer of the Company to the same extent
that officers of Carnival are indemnified under the By-Laws of
Carnival. This Section 19 shall not diminish in any way any other
rights of indemnification to which Executive may be entitled under the
By-Laws of any of the Companies or otherwise.
20. ENTIRE AGREEMENT.
This Agreement is the entire agreement between the parties and
supersedes all previous agreements, including, but not limited to, the
POPC Service Agreement. There are no agreements, promises, conditions,
representations or covenants expressed or implied other than as
expressly set forth herein. For the avoidance of doubt, the Plans, the
Stock Plan, the Stock Awards Plan and any other stock, pension, employee
benefit or welfare plan, program or agreement will continue and are not
superseded, except as expressly provided herein, by this Agreement.
21. ADDITIONAL PARTICULARS.
The Executive's additional particulars of employment for the
purposes of the U.K. Employment Rights Act 1996 are set forth in
Appendix 1, attached hereto and incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
P&O PRINCESS CRUISES INTERNATIONAL,
LTD.
BY:/s/ Anthony H. Kaufman
Name: Anthony H. Kaufman
Title: Director
CARNIVAL PLC (for purposes of Paragraph 1.1 only)
BY:/s/ Howard S. Frank
Howard S. Frank
CARNIVAL CORPORATION (for purposes of
Paragraph 6.5 only)
BY:/s/ Howard S. Frank
Howard S. Frank
EXECUTIVE
BY: /s/Peter Ratcliffe
Peter Ratcliffe
APPENDIX 1
Additional Particulars of Employment
The following additional particulars are given for the purposes of
the U.K. Employment Rights Act 1996:
1. Executive's employment by the Company began on the date of this
Agreement.
2. Executive's period of continuous employment for statutory purposes began
on June 1, 1973.
3. Except as otherwise provided by this Agreement, there are no terms or
conditions of employment relating to hours of work or to normal working
hours or to entitlement to holidays (including public holidays) or holiday
pay or incapacity for work due to sickness or injury or to pensions or
pension schemes or requiring Executive to work outside the United Kingdom
for a period of more than one month.
4. There are no collective agreements which directly affect the terms or
conditions of Executive's employment.
5. There is a contracting out certificate in place in respect of the
Executive's employment.
6. No formal disciplinary or grievance procedure is currently in force in
relation to Executive's employment. If Executive is dissatisfied with any
disciplinary decision relating to him he may appeal in writing to the
Chairman or Vice-Chairman of the Board within seven (7) days of that
decision, whose decision shall be final.
Exhibit A
BONUS SHARE AWARDS
1 Subject to the terms and conditions set forth in the Employment
Agreement and the Cplc Bonus Plan, the Company undertakes to make a
recommendation to the Trustee that fifty percent (50%) of the
Executive's Bonus shall be payable in the form of a conditional right to
receive fully paid ordinary shares in the capital of Cplc ("Shares")
granted under and pursuant to the terms of the Cplc Bonus Plan (a "Bonus
Share Award"); provided, however, that if such Bonus Share Award would
exceed the limit established by rule 2.2 of the Cplc Bonus Plan, the
excess shall be payable in cash. The Bonus Share Award shall be granted
in accordance with rule 5.1 of the Cplc Bonus Plan as soon as reasonably
practicable after the time bonuses are regularly paid to executives of
the Dual Listed Companies in respect of the applicable fiscal year. In
accordance with rule 3.2(e) of the Cplc Bonus Plan the Company shall
recommend that the Trustee determine that the retention period with
respect to each Bonus Share Award shall commence as of the first day of
the Financial Year in which the Bonus Share Award is granted (the "Grant
Date") and shall end on the date the financial results for the Financial
Year which is three years from the Grant Date are released (the
"Retention Period"). No Matching Awards will be granted to the
Executive with respect to any Bonus Share Award and the Executive will
not be entitled to contribute any part of his Bonus as Invested Shares
into the Cplc Bonus Plan.
(2) Subject to Sections 3, 5 and 6 below and in accordance with rule 8
of the Cplc Bonus Plan, the Executive shall have no entitlement to
exercise a Bonus Share Award unless he remains an employee of a member
of the Group until the end of the Retention Period applicable to such
Bonus Share Award and such release or exercise shall be made not later
than three months after the end of the Retention Period; provided that
if such release would be prohibited by law or the Model Code for
Securities Transactions by Directors of Listed Companies or Cplc's
dealing rules, the release or exercise shall be made within a period not
to exceed three months immediately following the date on which any such
prohibition ceases.
(3) A Bonus Share Award shall automatically lapse in accordance with
rule 13.4 of the Cplc Bonus Plan upon the occurrence of any of the
following events during the Retention Period applicable to such Bonus
Share Award:
(A) Executive's employment with the Company and the other members of
the Group is terminated by the Company for "Cause," as defined in
Paragraph 12.4 of the Employment Agreement;
(B) Executive terminates his employment with the Company and the
other members of the Group without "Good Reason," as defined in
Paragraph 12.5 of the Employment Agreement, and without giving the
notice required by Paragraph 12.6 of the Employment Agreement; or
(C) Executive materially breaches the nondisclosure or intellectual
property provisions set forth in Paragraphs 8 and 11, respectively, of
the Employment Agreement.
Except as provided in Section 5 below, if the Executive's employment
with the Company and the other members of the Group is terminated for
any reason other than on account of an event described in Section 3(A)
and 3(B) above, the Company shall recommend to the Trustee, in
accordance with rule 13.2(c) of the Cplc Bonus Plan, that the
Executive's Bonus Share Awards shall continue to be subject to the
provisions of the Cplc Bonus Plan (as though the Executive had remained
in employment with a member of the Group) until the end of the Retention
Period applicable to such Bonus Share Awards; provided, however, that in
the case of any Bonus Share Awards granted to the Executive after
January 7, 2003, but within the period of twelve months immediately
prior to the Executive's termination of employment with the Company and
each member of the Group on account of an event other than an event
described in Section 3(A) and 3(B) above, the Company shall recommend to
the Trustee that such Bonus Share Awards continue to be subject to the
provisions of the Cplc Bonus Plan (as though the Executive had remained
in employment with a member of the Group) until the end of the Retention
Period applicable to such Bonus Share Awards and that such Bonus Share
Awards be released in accordance with rule 13.3(a) of the Cplc Bonus
Plan. Subject to applicable law, if the Trustee does not agree with the
Company's recommendation, the Company will make the Executive whole on
an after-tax basis.
(4) The Executive hereby waives his rights to release or exercise of
any Bonus Share Awards in circumstances where the Executive materially
breaches the nondisclosure, noncompetition or intellectual property
provisions set forth in Paragraphs 8, 9 and 11, respectively, of the
Employment Agreement during the Retention Period applicable to such
Bonus Share Award, irrespective of the fact that at an earlier date the
Trustee may have exercised its discretion in accordance with rule
13.2(c) of the Cplc Bonus Plan.
(5) If the Executive's employment with a member of the Group is
terminated on account of his death, the Retention Period with respect to
each of the Executive's Bonus Share Awards shall be treated as coming to
an end on the date of the Executive's death and such Bonus Share Awards
shall be exercisable by the Executive's personal representatives as soon
as reasonably practicable within the period of twelve months following
the Executive's death in accordance with rule 13.1(a) of the Cplc Bonus
Plan.
(6) If any person (other than Carnival or any its affiliates) acquires
Control of Cplc within the meaning of rule 14 of the Cplc Bonus Plan,
the Shares subject to the Executive's Bonus Share Awards may be
exercised or released in accordance with rule 14 of the Cplc Bonus Plan.
(7) The provisions of the Employment Agreement and the Cplc Plan Bonus
Plan are hereby incorporated herein by reference. Except as otherwise
defined herein, any capitalized terms shall have the definitions set
forth in the Cplc Bonus Plan and the Employment Agreement; provided,
however, that if any capitalized term is used in both the Employment
Agreement and the Cplc Bonus Plan, such term shall have the meaning set
forth in the Cplc Bonus Plan.
Exhibit B
P&O PRINCESS CRUISES PLC
The rules of the
P&O PRINCESS CRUISES DEFERRED
BONUS AND CO-INVESTMENT MATCHING
PLAN:
Approved by resolution of The Peninsular and
Oriental Steam Navigation Company in general
meeting on 20 October 2000
Amended by resolution of the Board of Directors
of the Company on 7 January 2003
Contents
CLAUSE PAGE
2. FORM OF AWARDS 4
Share Award 4
Deferred Share Bonus Award 4
Invested Shares 5
Total Market Value of Awards 5
Matching Award 5
LTIP Awards and LTIP Matching Awards 6
3. INVITATION AND ELECTION TO PARTICIPATE IN THE PLAN 6
4. CONTRIBUTION OF INVESTED SHARES 6
5. GRANT OF SHARE AWARDS AND DEFERRED SHARE BONUS AWARDS 7
6. GRANT OF MATCHING AWARDS 8
7. A PARTICIPANT'S RIGHTS IN RESPECT OF HIS AWARDS 8
8. RELEASE OR EXERCISE OF SHARE AWARDS 9
9. RELEASE OR EXERCISE OF DEFERRED SHARE BONUS AWARDS 9
10. RELEASE OF INVESTED SHARES 9
11. RELEASE OR EXERCISE AND LAPSE OF MATCHING AWARDS 10
12. PERFORMANCE TARGETS FOR MATCHING AWARDS 11
13. CESSATION OF EMPLOYMENT 12
14. CHANGE OF CONTROL, SCHEME OF ARRANGEMENT,
WINDING UP, DEMERGER 13
15. ADJUSTMENTS 15
16. LIMIT ON UNISSUED SHARES 16
17. ADMINISTRATION 17
18. GENERAL 18
SCHEDULE 19
LTIP AWARDS AND LTIP MATCHING AWARDS
19
2. Grant of LTIP Awards and LTIP Matching Awards 19
3. Release or Exercise of LTIP Awards 20
4. Release or Exercise and Lapse of LTIP Matching Awards 20
5. Performance Condition for LTIP Matching Award 21
6. Cessation of Employment 22
7. Change of Control, Scheme of Arrangement, Winding up,
Demerger 23
8. General 25
THE P&O PRINCESS CRUISES DEFERRED BONUS AND
CO-INVESTMENT MATCHING PLAN
RULES
The P&O Princess Cruises Deferred Bonus and Co-Investment Matching Plan is
intended to facilitate the retention of senior executives of the Group and
to align the interests of such executives with those of Shareholders by
enabling executives to receive Shares and to apply a proportion of their
cash annual bonuses and their own funds, up to an annual limit, in the
purchase of Shares which must be retained for a period of up to three years
under the terms of the Plan. Provided the Participant has remained an
employee of the Group and retained the Shares for a period of at least
three years and a performance target has been satisfied, the Participant
will be entitled to additional Shares.
DEFINITIONS
1.1 In these rules, unless the context otherwise requires, the following
expressions shall have the following meanings respectively:
Admission has the meaning given in the listing particulars of the Company
dated 26 September 2000;
Annual Bonus means the gross bonus paid or payable to an Executive in
respect of any Financial Year under any annual bonus scheme from time to
time operated by any member of the Group;
Award means any or all of a right to receive or acquire a Matching Award,
a Share Award, a Deferred Share Bonus Award, a LTIP Award or a LTIP
Matching Award;
Base Year means in relation to an EPS Test Period the Financial Year ending
immediately prior to the start of the EPS Test Period;
Basic Salary means an Executive's annual basic salary in respect of his
employment with the Group;
Board means the board of directors of the Company;
Committee means the remuneration committee of the Board;
Company means P&O Princess Cruises plc;
Control has the meaning given to it by section 840 of the Income and
Corporation Taxes Act 1988;
Deferred Share Bonus Award means an Award referred to in Rule 2.3;
Earnings per Share means, for any year within an EPS Test Period, the
earnings per share calculated in accordance with Financial Reporting
Standard No. 14 issued by the Accounting Standards Board Limited or any
modification thereto provided that to ensure comparability of Financial
Years of the Company within an EPS Test Period the Committee may:
(a) adjust the figure for earnings per 1 Sterling Pound share as calculated
in accordance with relevant accounting standards to arrive at a figure
which reflects the underlying business performance of the Group (and may,
without limitation, adjust by excluding any or all extraordinary or
exceptional items from the earnings per share calculation);
(b) adjust the figure for the tax charge in respect of any year in an EPS
Test Period to eliminate the effect of exceptional and unforeseen tax
charges; and
(c) ensure that the relevant accounting standards are applied on a
consistent basis in respect of years falling within any EPS Test Period;
Employees' Share Scheme has the meaning given to it by section 743 of the
Companies Act 1985 (being inter alia a scheme for encouraging or
facilitating the holding of Shares by or for the benefit of employees of
the Group);
EPS Growth means in relation to an EPS Test Period, the percentage increase
in the Company's Earnings per Share for that EPS Test Period comparing the
Company's Earnings per Share for the relevant Base Year to the Company's
Earnings per Share for the relevant Final Year;
EPS Test Period means, in respect of any Matching Award, the period of
three years commencing on the first day of the Financial Year in which the
Grant Date falls;
Executive means any employee or executive director of any member of the
Group whose terms of service (other than in the case of the Chairman of the
Company) require him to devote substantially the whole of his time to the
affairs of the Group;
Executive Share Scheme means any Employees' Share Scheme under which
participation is at the discretion of the Board or Committee;
Final Year means in relation to an EPS Test Period the last Financial Year
in the EPS Test Period;
Financial Year means an accounting reference period as defined in
accordance with section 224 of the Companies Act 1985;
Grant Date means the date on which an Award is granted under Rule 5 or Rule
6;
Grant Letter means the notification to a Participant setting out the terms
of an Award;
Grant Period means the period of forty-two days commencing on any of the
following;
(a) the date of Admission;
(b) the day on which the Company makes an announcement of its results for
any period; or
(c) any day on which the Board resolves that exceptional circumstances
exist which justify the grant of Awards.
Group shall mean the Company and the Subsidiaries, and member of the Group
shall be construed accordingly;
Holding Period shall mean the period specified in paragraph 4.2 or 4.3 of
the Schedule;
Invested Shares means Shares acquired or contributed to the Plan referred
to in Rule 2.4 and Rule 4.2 which are designated as Invested Shares for the
purposes of the Plan;
London Stock Exchange means London Stock Exchange plc;
LTIP Award means one or both of a 2001 LTIP Award or a 2002 LTIP Award;
LTIP Matching Award means one or both of a 2001 LTIP Matching Award or a
2002 LTIP Matching Award;
2001 LTIP Award means an Award referred to in paragraph 1.1 of the Schedule
which has the Holding Period mentioned in paragraph 4.2 of the Schedule;
2002 LTIP Award means an Award referred to in paragraph 1.1 of the Schedule
which has the Holding Period mentioned in paragraph 4.3 of the Schedule;
2001 LTIP Matching Award means an Award referred to in paragraph 1.3 of the
Schedule which has the Holding Period mentioned in paragraph 4.2 of the
Schedule;
2002 LTIP Matching Award means an Award referred to in paragraph 1.3 of the
Schedule which has the Holding Period mentioned in paragraph 4.3 of the
Schedule;
Market Value means, in relation to Shares or an ordinary share in a
Comparator Company on any day, for so long as such shares are listed on the
London Stock Exchange, its middle-market quotation as derived from the
Daily Official List of the London Stock Exchange and otherwise shall mean
their market value as defined by section 272 of the Taxation of Chargeable
Gains Act 1992;
Matching Award means an Award referred to in Rule 2.6 and Rule 2.7;
P&O means The Peninsular and Oriental Steam Navigation Company;
Participant means an Executive participating in the Plan;
Plan means the P&O Princess Cruises Deferred Bonus and Co-Investment
Matching Plan as set out in these Rules;
the P&O Long Term Incentive Plan means the P&O Long Term Incentive Plan
approved by stockholders of P&O on 17 May 1996;
Replacement Options means the options to acquire Shares granted under the
P&O Princess Cruises Executive Share Option Plan in connection with the
Demerger which are expressed to replace options to acquire deferred stock
in P&O granted under employees' share schemes of P&O;
Retention Period shall mean the period specified in Rule 11.2;
Shares means fully paid ordinary shares in the capital of the Company;
Share Award means an Award referred to in Rule 2.1;
Subsidiary means any company which is a subsidiary of the Company within
the meaning of section 736 of the Companies Act 1985;
the Secretary means the Secretary of the Company, or some other person
nominated by the Board;
Trustee shall mean the original trustee under the P&O Princess Cruises
Employee Benefit Trust established by a Trust Deed dated 18 October 2000
or such other persons who is or are the trustee or trustees from time to
time of the said trust; and
References to any statute or statutory instrument or to any part or parts
thereof include any modification, amendment or re-enactment thereof for the
time being in force.
Words of the masculine gender shall include the feminine and vice versa and
words in the singular shall include the plural and vice versa unless in
either case the context otherwise requires or is otherwise stated.
FORM OF AWARDS
2. Share Award
2.1 The Trustee may grant a Share Award in respect of any Financial Year
to an Executive who applies to participate in the Plan over such number of
Shares as the Trustee shall determine, having regard to the recommendations
of the Committee.
2.2 The aggregate Market Value of the Shares over which a Share Award is
granted shall not exceed 50% of the Executive's annual basic salary payable
for that Financial Year.
Deferred Share Bonus Award
2.3 The Trustee may grant a Deferred Share Bonus Award in respect of any
Financial Year to an Executive who applies to participate in the Plan over
such number of Shares as the Trustee shall determine having regard to the
recommendations of the Committee and any elections which the Executive has
made in his participation application.
Invested Shares
2.4 The Trustee may allow an Executive who applies to participate in the
Plan to contribute Invested Shares for the purposes of the Plan which he
may do by applying all or part of his Annual Bonus (after the deduction of
tax) and such other monies as the Executive may pay to the Trustee in the
acquisition of Shares which shall be designated as Invested Shares for the
purposes of the Plan and which may be registered in the name of the
Executive or held by the Trustee as bare trustee for the Executive.
Total Market Value of Awards
2.5 The aggregate of the total Market Value of:
(a) an Executive's Invested Shares multiplied by the fraction 1/1-X where
X is the Executive's marginal rate of income tax expressed as a fraction;
and
(b) the Shares the subject of any Share Award and/or Deferred Share Bonus
Award granted to a Participant
in respect of a Financial Year
shall not exceed 100% of the Executive's annual basic salary for that
Financial Year. The Market Value of Invested Shares shall be measured at
the date the Invested Shares are acquired or contributed to the Plan. The
Market Value of Shares the subject of a Share Award or a Deferred Share
Bonus Award shall be measured at the relevant Grant Date.
Matching Award
2.6 The Trustee may grant a Matching Award to an Executive who has been
granted a Share Award or a Deferred Share Bonus Award or has contributed
Invested Shares and such Matching Award shall be treated as related to such
Invested Shares or Award.
2.7 The Matching Award shall entitle the Participant to acquire such
maximum number of Shares subject to these Rules as the Trustee shall
specify at the time of grant. Such maximum shall not exceed a number of
Shares having a total Market Value at the Grant Date equal to the sum of:
(a) the Market Value of an Executive's Invested Shares multiplied by the
fraction 1/1-X where X is the Executive's marginal rate of income tax
expressed as a fraction (measuring Market Value at the date the Invested
Shares are acquired or contributed to the Plan); and
(b) the total Market Value of the Shares the subject of any Deferred Share
Bonus Award granted to him; and
(c) the total Market Value of the Shares the subject of any Share Award
granted to him.
2.8 The number of Shares which the Participant may acquire under the
Matching Award will be determined at the end of the Retention Period
according to the extent to which a performance target specified by the
Trustee at the Grant Date has been satisfied.
LTIP Awards and LTIP Matching Awards
2.9 The Trustee may grant LTIP Awards and LTIP Matching Awards on the terms
set out in the Schedule hereto.
3. INVITATION AND ELECTION TO PARTICIPATE IN THE PLAN
3.1 The Trustee may at any time before or after the notification of Annual
Bonuses invite any Executive selected by the Committee to participate in
the Plan.
3.2 An invitation shall be in such form as the Trustee may from time to
time prescribe but shall inter alia specify in respect of any Financial
Year:
(a) whether the Executive is eligible for the grant of a Share Award;
(b) whether the Executive is eligible for the grant of a Deferred Share
Bonus Award and, if so, what maximum value he may elect to receive in the
form of such Deferred Share Bonus Award;
(c) the Executive is eligible to contribute Invested Shares, and if so what
maximum value he may apply from his Annual Bonus after the deduction of tax
and/or his own resources in the acquisition of Shares to be designated as
Invested Shares;
(d) maximum number of Shares over which a Matching Award may be granted to
the Executive and the performance condition which will apply to the
Matching Award; and
(e) the Retention Period to which a Participant's Awards and Invested
Shares will be subject.
3.3 An Executive may elect to participate in the Plan by signing and
returning to the Trustee a notice of election in such form as the Trustee
may from time to time prescribe.
4. CONTRIBUTION OF INVESTED SHARES
4.1 If the Participant elects to apply all or part of his Annual Bonus
(after deduction of tax) and/or his own resources in the acquisition of
Shares to be designated as Invested Shares for the purposes of Plan he
shall comply with such arrangements as the Company and/or the Trustee shall
specify to ensure that the Trustee has sufficient monies available to
acquire the necessary Shares at the appropriate time.
4.2 The Trustee may, at its discretion, permit a Participant to transfer
Shares to the Trustee or to deposit with the Secretary certificates
representing Shares, which in either case shall be treated as Invested
Shares for the purposes of the Plan.
4.3 Any purchase of Shares pursuant to Rule 4.1 shall be of such whole
number of Shares as can be purchased with the cash amount which the
Participant has elected to apply (less dealing costs and stamp duty) at a
price no higher than the best price reasonably obtainable on the London
Stock Exchange (or on any recognised exchange which replaces the London
Stock Exchange) on the day of purchase.
4.4 For the purposes of Rule 4.3 any purchase of Shares shall be made at
such times during a Grant Period as the Trustee may in its absolute
discretion decide unless any purchase would be prohibited by law or the
Model Code for Securities Transactions by Directors of Listed Companies (or
the Company's dealing rules), and the Trustee may consult with the
Company's Brokers and the Secretary on the timing of purchases after such
prohibition ceases.
4.5 Any sum remaining following the acquisition of Invested Shares pursuant
to Rule 4.3 on behalf of a Participant shall be paid to that Participant.
4.6 The Trustee shall hold a Participant's Invested Shares as bare trustee
for the Participant throughout the Retention Period, or a Participant's
Invested Shares may be registered in the name of the Participant and the
certificates relating to those Shares deposited with the Secretary
throughout the Retention Period.
4.7 For the avoidance of doubt the Participant shall have the beneficial
interest in his Invested Shares during the Retention Period and shall be
entitled to receive all dividends payable in respect of his Invested Shares
and shall have all the rights therein commonly enjoyed by a beneficial
owner of Shares.
5. GRANT OF SHARE AWARDS AND DEFERRED SHARE BONUS AWARDS
5.1 The Trustee may grant a Share Award and/or a Deferred Share Bonus Award
to a Participant at any time during a Grant Period unless the making of an
Award would be prohibited by law or the Model Code for Securities
Transactions by Directors of Listed Companies (or the Company's dealing
rules).
5.2 If such prohibition remains in force after the date on which any Share
Award would have been granted but for such prohibition, the Share Award
shall be granted immediately following the date on which the prohibition
ceases.
5.3 If such prohibition remains in force 30 days after the date on which
any Deferred Share Bonus Award would have been granted but for such
prohibition, the Board or Trustee shall invite the Participant to
reconsider whether he wishes to elect to receive:
(a) a Deferred Share Bonus Award immediately following the date on which
the prohibition ceases; or
(b) a cash sum equal to the value he elected to receive in the form of such
Deferred Share Bonus Award.
5.4 The Trustee may determine at the time of grant whether the Participant
shall have any beneficial interest in the Shares the subject of a Share
Award or a Deferred Share Bonus Award and whether he shall have any right
to dividends in respect of the Shares and such other rights therein
commonly enjoyed by a beneficial owner of Shares or whether he shall only
have a conditional right to acquire or receive such Shares in which case
he shall have no beneficial interest in the Shares until the end of the
Retention Period.
5.5 The Trustee may at its discretion grant a Share Award or a Deferred
Share Bonus Award in the form of an option to acquire Shares, a right to
receive Shares, a conditional allocation of Shares or an allocation of
Shares subject to restrictions and any reference to an Award being
"exercisable" or "exercised" shall in the case of an Award which is not
granted in the form of an option be construed as "being capable of release"
or "released".
6. GRANT OF MATCHING AWARDS
6.1 A Matching Award may be granted to a Participant at any time during a
Grant Period unless the making of the Award would be prohibited by law or
the Model Code for Securities Transactions by Directors of Listed Companies
(or the Company's dealing rules). If such prohibition remains in force
after the date on which any Matching Award would have been granted but for
such prohibition, the Matching Award shall be granted immediately following
the date on which the prohibition ceases.
6.2 The Trustee may determine at the time of grant whether the Participant
shall have any beneficial interest in the Shares the subject of a Matching
Award and whether he shall have any right to dividends in respect of the
Shares and such other rights therein commonly enjoyed by a beneficial owner
of Shares or whether he shall only have a conditional right to acquire or
receive such Shares, in which case he shall have no beneficial interest in
the Shares until the release or exercise of such Award.
6.3 The Trustee may at its discretion grant a Matching Award in the form
of an option to acquire Shares, a right to receive Shares, a conditional
allocation of Shares or an allocation of Shares subject to restrictions.
7. A PARTICIPANT'S RIGHTS IN RESPECT OF HIS AWARDS
7.1 No consideration shall be given for the grant of an Award which shall
be evidenced by a Grant Letter in such form as the Trustee shall from time
to time prescribe and which shall be executed as a deed.
7.2 The Company shall procure that there are sufficient Shares available
at the end of the Retention Period for issue or transfer to satisfy an
Award.
7.3 Nothing in these Rules or in a Participant's contract of employment
shall be construed as giving to any Participant a right to be considered
for participation in the Plan, to contribute Invested Shares or to receive
the grant of any Award.
7.4 Neither an Award nor the Shares the subject of an Award shall be
pensionable for any purpose.
7.5 Neither an Award nor the Shares the subject of an Award shall be
capable of being transferred, assigned, sold, pledged, charged or otherwise
disposed of during the Retention Period save as permitted by these Rules.
8. RELEASE OR EXERCISE OF SHARE AWARDS
Save as otherwise permitted by these Rules, a Participant shall have no
entitlement to exercise his Share Award unless he remains an employee of
any member of the Group until the end of the Retention Period and such
release or exercise shall be made not later than three months after such
date or, if such release or exercise would be prohibited by law or the
Model Code for Securities Transactions by Directors of Listed Companies (or
the Company's dealing rules) at that time, such release or exercise may be
made within such period, not exceeding three months, immediately following
the date on which such prohibition ceases, as the Trustee may determine.
For the avoidance of doubt, such exercise may occur irrespective of
whether the performance targets referred to in Rules 12.2 and 12.4 are
satisfied.
9. RELEASE OR EXERCISE OF DEFERRED SHARE BONUS AWARDS
Save as otherwise permitted by these Rules, a Participant shall have no
entitlement to exercise his Deferred Share Bonus Award until the end of the
Retention Period and such exercise shall be made not later than three
months after such date or, if such exercise would be prohibited by law or
the Model Code for Securities Transactions by Directors of Listed Companies
(or the Company's dealing rules) at that time, such exercise may be made
within such period, not exceeding three months, immediately following the
date on which such prohibition ceases, as the Trustee may determine. For
the avoidance of doubt, such exercise may occur irrespective of whether the
performance targets referred to in Rules 12.2 and 12.4 are satisfied.
10. RELEASE OF INVESTED SHARES
Save as otherwise permitted by these Rules, a Participant's Invested Shares
shall not be released to him until the end of the Retention Period and such
release shall be made as soon as reasonably practicable after such date or,
if such release would be prohibited by law or the Model Code for Securities
Transactions by Directors of Listed Companies (or the Company's dealing
rules) at that time, such release may be made within such period, not
exceeding three months, immediately following the date on which such
prohibition ceases, as the Trustee may determine. For the avoidance of
doubt, such exercise may occur irrespective of whether the performance
targets referred to in Rules 12.2 and 12.4 are satisfied.
11. RELEASE OR EXERCISE AND LAPSE OF MATCHING AWARDS
Save as otherwise permitted by these Rules a Participant shall have no
entitlement to the exercise his Matching Award unless:
(a) any performance targets referred to in Rules 12.2 and 12.4 below are
satisfied;
(b) the Participant retains beneficial ownership of all the Invested Shares
to which the Matching Award relates throughout the Retention Period
referred to in Rule 11.2 below, and any Share Award or Deferred Share Bonus
Award to which the Matching Award relates is still subsisting at the end
of the Retention Period; and
(c) the Participant remains an employee of any member of the Group until
the end of the Retention Period.
11.2 The Retention Period in relation to a Participant's Awards and
Invested Shares shall (unless foreshortened pursuant to Rules 13 and 14)
be the period commencing on the first day of the Financial Year in which
the related Matching Award is granted and ending on the date on which the
final results for the last Financial Year of the EPS Test Period are
announced.
11.3 The Trustee may in its absolute discretion determine in exceptional
circumstances that notwithstanding that a Participant has ceased to retain
beneficial ownership of all or some Invested Shares or that an Award has
lapsed prior to the end of the Retention Period that all or some pro rata
part of the related Matching Award may be released or exercised subject to
Rule 12 as if the condition in Rule 11.1(b) had been satisfied.
11.4 In the event that all the conditions in Rule 11.1 (a), (b) and (c) are
satisfied, the Participant shall become entitled to the release of or to
exercise his Matching Award. Where the relevant Shares are to be released
they shall be released as soon as reasonably practicable after the end of
the Retention Period. Where the Award is to be exercised it may be
exercised within three months of the end of the Retention Period or, if
such exercise would be prohibited by law or the Model Code for Securities
Transactions by Directors of Listed Companies (or the Company's dealing
rules) at that time, such exercise may be made within such period, not
exceeding three months, immediately following the date on which such
prohibition ceases, as the Trustee may determine.
11.5 Save as otherwise permitted by these Rules, in the event that any
performance conditions referred to in Rules 12.2 and 12.4 below are not
satisfied at the end of the Retention Period a Participant's Matching Award
shall automatically lapse.
11.6 Any transfer, assignment, sale, pledge, charge or other disposal of
a Participant's Invested Shares or any Shares the subject of a Share Award
or Deferred Share Bonus Award shall result in the automatic lapse and
forfeiture of the related Matching Award unless in exceptional
circumstances the Trustee has exercised its discretion pursuant to
Rule 11.3 in which case all or such pro rata part of the Matching Award as
the Trustee may determine may continue subject to the Rules of the Plan.
12. PERFORMANCE TARGETS FOR MATCHING AWARDS
12.1 Subject to the provisions of Rule 14 a Matching Award shall not be
capable of exercise unless the performance target set out in Rule 12.2 is
satisfied. The Trustee acting on the recommendation of the Committee may
impose a different but no less onerous target to the target set out in
Rule 12.2 in respect of different Awards and in respect of Awards granted
in different Financial Years and any reference in these Rules to the target
referred to in Rule 12.2 shall include any such different target.
12.2 The performance target referred to in Rule 12.1 is that the Company's
EPS Growth in the EPS Test Period applicable to the Matching Award is at
least 10 per cent. The Committee shall determine whether such performance
target has been satisfied and inform the Trustee accordingly.
12.3 A Matching Award shall lapse automatically if the test in Rule 12.2
is not met unless the Trustee acting on the recommendation of the Committee
is otherwise satisfied that the underlying performance of the Company over
the same period justifies the exercise of Awards (in which event the
performance target in Rule 12.2 shall be deemed to be satisfied).
12.4 If the performance target in Rule 12.2 above is satisfied, a Matching
Award shall be exercisable in respect of such number of Shares as
represents the percentage of the Matching Award as is shown in the
right-hand column below according to the Company's EPS Growth in the EPS
Test Period as indicated in the left-hand column below:
Company's EPS Growth % of Matching Award capable of
release or exercise
40% and greater 100%
10% 25%
Below 10% 0%
Where the Company's EPS Growth is between 40% and 10%, the percentage of
a Matching Award which is capable of exercise shall be calculated on a
straight line basis between 100% and 25%.
12.5 The Trustee acting on the recommendation of the Committee may impose
a different but no less onerous performance target or condition to the
condition set out in Rule 12.4 in respect of different Awards and in
respect of Awards granted in different Financial Years and any reference
in these Rules to the target or condition referred to in Rule 12.4 shall
include any such different target or condition.
13. CESSATION OF EMPLOYMENT
13.1 If a Participant ceases to be an employee of a member of the Group
during the Retention Period by reason of death:
(a) the Retention Period as it relates to the Participant's Invested Shares
and any Share Award or Deferred Share Bonus Award shall be treated as
coming to an end on the date of death and any Invested Shares shall be
released to and any Share Award or Deferred Share Bonus Award shall be
exercisable by the Participant's personal representatives as soon as
reasonably practicable within the period of 12 months following the date
of death; and
(b) the related Matching Award shall continue to be subject to the
provisions of the Plan as though the Participant had remained in
employment. The Participant's Matching Award shall be exercisable by the
Participant's personal representatives within 12 months after the end of
the Retention Period subject to Rule 12 PROVIDED THAT the number of Shares in
respect of which the Matching Award shall be exercised as determined
pursuant to Rule 12.4 shall be reduced by the fraction A/B (where A is that
part of the EPS Test Period relating to the Matching Award following the
Participant's death (measured in complete months) and B is 36) and FURTHER
PROVIDED THAT any related Matching Award granted to the Participant after 7
January 2003 but within the period of 12 months immediately prior to the
Participant's death shall lapse automatically upon the date of death unless
the Trustee (acting on the recommendation of the Committee) determines
otherwise in which case the preceding provisions of this Rule 13.1(b) shall
apply.
13.2 If a Participant ceases to be an employee of a member of the Group
during the Retention Period by reason of:
(a) injury, disability or ill-health;
(b) retirement at or after the date on which he is bound to retire under
his contract of employment or early retirement (as agreed by the Trustee
acting on the recommendation of the Committee); or
(c) any reason other than one stated in this Rule 13.2 which the Trustee
(acting on the recommendation of the Committee) so decides in its absolute
discretion
the Participant's Invested Shares, Share Award, Deferred Share Bonus Award
and the related Matching Award shall continue to be subject to the
provisions of the Plan (as though the Participant had remained in
employment) until the end of the Retention Period PROVIDED THAT in the case
of any Awards granted to the Participant after 7 January 2003, but within
the period of 12 months immediately prior to the Participant's cessation
of employment, the related Invested Shares shall be released to, and any
relevant Share Award or Deferred Share Bonus Award shall be exercisable by,
the Participant within three months of such cessation and any related
Matching Awards shall lapse automatically upon such cessation unless the
Trustee (acting on the recommendation of the Committee) determines
otherwise, in which case the preceding provisions of this Rule 13.2 shall
apply to the Invested Shares and any Share Award, Deferred Share Bonus
Award and related Matching Award.
13.3 Where Rule 13.2 applies:
(a) the Participant's Invested Shares shall be released to and any Share
Award or Deferred Share Bonus Award shall be exercisable by, him within
three months after the end of the Retention Period; and
(b) the related Matching Award shall be exercisable by him within three
months after the end of the Retention Period subject to Rule 12 PROVIDED THAT
the number of Shares in respect of which the Matching Award shall be
exercised as determined pursuant to Rule 12.4 shall be reduced by the
fraction A/B (where A is that part of the EPS Test Period relating to the
Matching Award following the Participant's cessation of employment
(measured in complete months) and B is 36).
13.4 If a Participant ceases to be an employee of a member of the Group
during the Retention Period for any reason other than one stated in Rules
13.1 and 13.2 above, the Participant's Invested Shares shall be released
to, and any Deferred Share Bonus Award shall be exercisable by, him within
three months after the cessation of employment but any Share Award or
Matching Award granted to him shall automatically lapse.
13.5 If any release or exercise under this Rule 13 would be prohibited by
law or the Model Code for Securities Transactions by Directors of Listed
Companies (or the Company's dealing rules) at that time, such release or
exercise may be made within such period, not exceeding three months,
immediately following the date on which such prohibition ceases, as the
Trustee may determine
14. CHANGE OF CONTROL, SCHEME OF ARRANGEMENT, WINDING UP, DEMERGER
14.1 If at any time any person (either alone or together with any person
acting in concert with him) obtains Control of the Company as a result of
making an offer (whether by way of a general offer or otherwise) to acquire
the whole of the issued share capital of the Company or all of the Shares
(other than any Shares already owned by him and/or any person acting in
concert with him) which was either unconditional or was made on a condition
such that if it was satisfied, the person making the offer would have
Control of the Company, the performance targets referred to in Rule 12
applying to a Participant's Matching Award shall cease to apply and the
Retention Period applying to his Invested Shares and Awards shall be
treated as coming to an end. A Participant's Invested Shares shall be
released to, and any Share Award and Deferred Share Bonus Award granted to
the Participant shall be exercisable by, him within 30 days of such person
acquiring Control and any condition to which the offer was made has been
satisfied. Subject to Rule 14.1B below the related Matching Award shall
be exercisable by the Participant within such 30 day period in respect of
the maximum number of Shares over which it was granted without having
regard to the performance target in Rule 12.4 unless prior to the
commencement of the 30 day period the Committee has informed the Trustee
in writing that a lesser number is appropriate having regard to the
underlying financial performance of the Company in which case the
Participant shall be entitled to exercise his Matching Award only in
respect of such lesser number.
14.1A If any transaction is implemented whereby the shareholders of the
Company immediately prior to the completion of such transaction cease, upon
such completion, to hold the majority of votes capable of being cast on any
matter in relation to the Company (whether by the shareholders of the
Company alone or together with the shareholders of any other company
forming part of a single combined economic enterprise with the Company) the
performance targets referred to in Rule 12 applying to a Participant's
Matching Award shall cease to apply and the Retention Period applying to
his Invested Shares and Awards shall be treated as coming to an end. A
Participant's Invested Shares shall be released to, and any Share Award and
Deferred Share Bonus Award granted to the Participant shall be exercisable
by, him within 30 days of the completion of such transaction. Subject to
Rule 14.1B below the related Matching Award shall be exercisable by the
Participant within such 30 day period in respect of the maximum number of
Shares over which it was granted without having regard to the performance
target in Rule 12.4 unless prior to the commencement of the 30 day period
the Committee has informed the Trustee in writing that a lesser number is
appropriate having regard to the underlying financial performance of the
Company, in which case the Participant shall be entitled to exercise his
Matching Award only in respect of such lesser number.
14.1B If any person obtains Control of the Company in the circumstances
mentioned in Rule 14.1, or any transaction as is mentioned in Rule 14.1A
is implemented, any Matching Award granted to a Participant after 7 January
2003 and within the period of 12 months prior to the date any such person
obtains Control or, as the case may be, the completion of any such
transaction, shall automatically lapse on such person obtaining Control or
upon the completion of any such transaction (as the case may be) unless the
Trustee (acting on the recommendation of the Committee) determines that the
provisions of Rule 14.1 or 14.1A shall apply
14.2 If any person obtains Control of the Company in pursuance of a
compromise or arrangement sanctioned by the Court under section 425 of the
Companies Act 1985, the performance targets referred to in Rule 12 applying
to a Participant's Matching Award shall cease to apply and the Retention
Period applying to his Invested Shares and Awards shall be treated as
coming to an end. A Participant's Invested Shares shall be released to,
and any Share Award or Deferred Share Bonus Award shall be exercisable by,
him within 30 days of the Court sanctioning the compromise or arrangement.
Subject to Rule 14.2A below the related Matching Award shall be
exercisable by the Participant within such 30 day period in respect of the
maximum number of Shares over which it was granted without having regard
to the performance target in Rule 12.4 unless prior to the commencement of
the 30 day period the Committee has informed the Trustee in writing that
a lesser number is appropriate having regard to the underlying financial
performance of the Company in which case the Participant shall be entitled
to exercise his Matching Award only in respect of such lesser number. If
as a result of such compromise or arrangement Shares are exchanged for
other shares or securities, the references to Shares in this Rule 14.3
shall be deemed to be references to such other shares or securities.
14.2A Any Matching Award granted to a Participant after 7 January 2003
and within the period of 12 months prior to the date any person obtains
Control of the Company in the circumstances mentioned in Rule 14.2,
shall automatically lapse on such person obtaining Control unless the
Trustee (acting on the recommendation of the Committee) determines that
the provisions of Rule 14.2 shall apply.
14.3 A Matching Award shall not be exercised under Rule 14.2 without the
consent of the Committee if the purpose and effect of the compromise or
arrangement is to create a new holding company for the Company, such
company having substantially the same Shareholders and proportionate
Shareholdings as those of the Company immediately prior to the compromise
or arrangement.
14.4 If a resolution for the voluntary winding up of the Company is passed
any performance targets referred to in Rule 12 applying to a Participant's
Matching Award shall cease to apply and the Retention Period applying to
his Invested Shares and Awards shall be treated as coming to an end. A
Participant's Invested Shares shall be released to, and any Share Award and
Deferred Share Bonus Award shall be exercisable by, him within 30 days of
the passing of such resolution. The related Matching Award shall be
exercisable by him within such 30 day period in respect of the maximum
number of Shares over which it was granted without having regard to the
performance target in Rule 12.4 unless prior to the commencement of the
30 day period the Committee has informed the Trustee in writing that a
lesser number is appropriate having regard to the underlying financial
performance of the Company in which case the Participant shall be entitled
to exercise his Matching Award only in respect of such lesser number.
14.5 If the Board or Committee becomes aware that the Company is or is
expected to be affected by any demerger, dividend in specie, super dividend
or other transaction, which in the opinion of the Board or Committee would
affect the current or future value of any Awards, the Board or Committee
may recommend to the Trustee to allow a Participant's Invested Shares to
be released to, or his Awards to be exercised by, him within such period
and on such terms whether or not having regard to the performance targets
in Rule 12 as the Trustee may after consultation with the Board or
Committee consider appropriate. The Trustee may take such action after
consultation with the Board or Committee as it considers appropriate in the
circumstances including in relation to any monies, Shares, or other
securities it may receive as a result of any such event.
15. ADJUSTMENTS
15.1 In the event of any capitalisation issue, rights issue or sub-division
or consolidation of or other variation in the share capital of the Company:
(a) a Participant shall, in respect of his Invested Shares and any Shares
the subject of an Award in which he has a beneficial interest, be treated
in the same manner as any other holder of Shares, save that (unless the
Board determines otherwise):
(i) in the event of a rights issue in respect of Shares,
(A) the Participant shall be required to sell sufficient rights
nil-paid (at such time during the rights issue as the Board
thinks fit) as will enable the Participant to acquire with
the proceeds of sale the remainder of his rights
entitlement;
(B) PROVIDED THAT the Participant may elect to take up in a
personal capacity the rights that would have been sold (and
any resulting Shares shall not be subject to this Plan)
subject to the Participant providing sufficient funds to
give effect to his obligation under the first part of
paragraph (i)(1);
(ii) in the event of receipt of cash (other than dividends paid in the
normal course) or securities (other than Shares) in respect of
Shares (on a demerger or other reorganisation of the Shares of
the Company), the Participant shall be required to apply that
cash (or the proceeds of sale of such securities), after allowing
for tax thereon and expenses of sale, in the purchase of further
Shares; and
(iii)the Participant shall deposit with the Secretary or Trustee (as
the Board shall require) for the remainder of the Retention
Period the certificates in respect of Shares or other securities
received in connection with the relevant event; and
(b) the number of Shares the subject of a Participant's Share Award,
Deferred Share Bonus Award, LTIP Award, Matching Award or LTIP Matching
Award and in which he has no beneficial interest shall be adjusted in such
manner as the Trustee, in its absolute discretion with the recommendation
of the Committee, thinks fit.
16. LIMIT ON UNISSUED SHARES
16.1 The number of unissued Shares which may be made the subject of Awards
on any day shall not, when added to the aggregate number of Shares issued
or issuable pursuant to Awards or rights granted in the previous ten years
under the Plan and any other Executive Share Scheme established by the
Company, exceed such number as represents five per cent of the ordinary
share capital of the Company in issue immediately prior to that day.
16.2 The number of unissued Shares which may be made the subject of Awards
on any day shall not, when added to the aggregate number of Shares issued
or issuable pursuant to Awards or rights granted in the previous ten years
under the Plan and any other Employees' Share Scheme established by the
Company, exceed such number as represents ten per cent of the ordinary
share capital of the Company in issue immediately prior to that day.
16.3 In determining the limits in Rules 16.1 and 16.2, any Replacement
Options pursuant to which Shares may be issued shall be treated as granted
on the date the options they replace were granted.
17 ADMINISTRATION
17.1 The rights and obligations of any Participant under the terms of his
office or employment shall not be affected by his participation in the
Plan. Each Participant shall be deemed to waive all and any rights to
compensation or damages in consequence of the termination of his office or
employment for any reason whatsoever insofar as those rights arise or may
arise from his ceasing to have rights hereunder as a result of such
termination or from the loss or diminution in value of such rights or
entitlements.
17.2 All share certificates and other communications relating to the Plan
shall be sent at the Participant's risk.
17.3 Shares shall be released to a Participant by the Secretary delivering
to a Participant or his personal representatives the certificate(s) in
relation to a Participant's Shares, or if the Shares are held by the
Trustee, by the Trustee transferring such Shares to the Participant or his
personal representatives.
17.4 Any liability of a Participant to taxation in respect of an Award
shall be for the account of the relevant Participant, and the release of
any Shares the subject of a Participant's Award or the exercise of any such
Award shall be conditional on the Participant complying with any
arrangements specified by the Trustee or the Company for the payment of
taxation and any national insurance contributions (including, without
limitation, the sale of sufficient Shares to enable the Trustee or the
Company or any employing company in the Group to satisfy its obligations
in respect of deduction of taxation and employee's national insurance
contributions at source).
17.5 The Trustee acting in consultation with the Committee may determine
that the release of any Shares the subject of a Participant's Award or the
exercise of any such Award shall be conditional on the Participant either:
(a) entering into an election by such date as the Trustee, or the Company
or any relevant employing company in the Group shall specify, whereby the
Participant agrees that all or any part of the secondary (employer's)
national insurance contributions arising in respect of the release of any
Shares or exercise of any such Awards will be for the account of the
Participant or his personal representatives; or
(b) complying with such arrangements as the Company or the Trustee or any
relevant employing company in the Group shall specify from to time whereby
such contributions are deducted from the Participant's earnings or
otherwise recovered (directly or indirectly) from the Participant.
The Company, Trustee or relevant employing company reserves the right to
waive this condition in respect of all or part of the Awards granted to the
Participant and in respect of all or any part of the secondary (employer's)
national insurance contributions arising in respect of the release of
Shares or exercise of such Awards.
18. GENERAL
18.1 The Company reserves the right to terminate the Plan or amend these
rules at any time (including by the adoption of a further schedule to
provide for the conversion of cash based bonus incentives into awards to
acquire Shares pursuant to the Plan) PROVIDED THAT the provisions governing
eligibility to participate in the Plan, individual participation limits and
the consequences of any capitalisation issue, rights issue or sub-division
or any other variation of capital cannot be altered to the advantage of
Participants without the prior approval of Shareholders in general meeting
(except for minor amendments to benefit the administration of the Plan, to
take account of a change in legislation (including but not limited to
changes to rates of taxation of Participants) or to obtain or maintain
favourable tax, exchange control or regulatory treatment for Participants
or for any member of the Group).
18.2 The Plan shall constitute an Employees' Share Scheme so that financial
assistance provided by the Company or its Subsidiaries for those purposes
shall be lawful by reason of section 153(4)(b) of the Companies Act 1985.
18.3 These rules shall be governed by and construed in accordance with
English law.
SCHEDULE
LTIP AWARDS AND LTIP MATCHING AWARDS
1.1 The Trustee may grant a 2001 LTIP Award and a 2002 LTIP Award to an
Executive who, immediately prior to the Demerger, holds an award granted
under the terms of the P&O Long Term Incentive Plan in respect of the
performance period ending 31 December 1999 which he releases in
consideration for the grant of LTIP Awards.
1.2 A 2001 LTIP Award shall entitle the Participant to acquire such number
of Shares as have a Market Value at the Grant Date as nearly as possible
equal to fifty per cent of the Market Value of the P&O Deferred Stock over
which the award referred to in paragraph 1.1 subsisted immediately before
it was released.
1.3 A 2002 LTIP Award shall entitle the Participant to acquire such number
of Shares as have a Market Value at the Grant Date as nearly as possible
equal to fifty per cent of the Market Value of the P&O Deferred Stock over
which the award referred to in paragraph 1.1 subsisted immediately before
it was released.
1.4 The Trustee may grant a 2001 LTIP Matching Award and a 2002 LTIP
Matching Award to an Executive who has been granted a 2001 LTIP Award and
a 2002 LTIP Award and the 2001 LTIP Matching Award shall be treated as
related to the 2001 LTIP Award and the 2002 LTIP Matching Award shall be
treated as related to the 2002 LTIP Award.
1.5 A LTIP Matching Award shall entitle the Participant to acquire such
maximum number of Shares subject to this Schedule as the Trustee shall
specify at the time of grant. Such maximum shall not exceed a number of
Shares having a total Market Value at the Grant Date equal:
(a)in the case of a 2001 LTIP Matching Award to the Shares the subject of
the 2001 LTIP Award;
(b)in the case of a 2002 LTIP Matching Award to the Shares the subject of
the 2002 LTIP Award.
2. GRANT OF LTIP AWARDS AND LTIP MATCHING AWARDS
2.1 A LTIP Award and a LTIP Matching Award may only be granted to a
Participant within the period of six weeks immediately following the date
of Admission.
2.2 The Trustee may determine at the time of grant whether the Participant
shall have any beneficial interest in the Shares the subject of a LTIP
Award and a LTIP Matching Award and, accordingly, whether he shall have any
right to dividends in respect of the Shares and such other rights therein
commonly enjoyed by a beneficial owner of Shares or whether he shall only
have a conditional right to acquire or receive such Shares, in which case
he shall have no beneficial interest in the Shares until the release or
exercise of such Award.
2.3 The Trustee may at its discretion grant a LTIP Award and a LTIP
Matching Award in the form of an option to acquire Shares, a right to
receive Shares, a conditional allocation of Shares or an allocation of
Shares subject to restrictions and any reference to an Award being
"exercisable" or "exercised" shall in the case of an Award which is not
granted in the form of an option be construed as "being capable of release"
or "released".
3. RELEASE OR EXERCISE OF LTIP AWARDS
Save as otherwise permitted by this Schedule a Participant shall have no
entitlement to exercise his 2001 LTIP Award until the date on which the
final results for the Financial Year ended 31 December 2001 are announced
(the 2001 Results Date) nor his 2002 LTIP Award until the date on which the
final results for the Financial Year ended 31 December 2003 are announced
(the 2003 Results Date) and such exercise shall be made not later than
three months after the relevant date or, if such exercise would be
prohibited by law or the Model Code for Securities Transactions by
Directors of Listed Companies (or the Company's dealing rules) at that
time, such exercise may be made within such period, not exceeding three
months, immediately following the date on which such prohibition ceases,
as the Trustee may determine. For the avoidance of doubt, such exercise
may occur irrespective of whether the performance condition in paragraph
5 is satisfied.
4. RELEASE OR EXERCISE AND LAPSE OF LTIP MATCHING AWARDS
4.1 Save as otherwise permitted by this Schedule a Participant shall have
no entitlement to exercise a LTIP Matching Award unless:
(a) The Participant retains his related LTIP Award throughout the relevant
Holding Period referred to in paragraph 4.2 and 4.3 below; and
(b) the Participant remains an employee of any member of the Group until
the end of the relevant Holding Period.
4.2 The Holding Period in relation to a 2001 LTIP Matching Award shall
(unless foreshortened pursuant to paragraphs 6 and 7) be the period which
commences on the Grant Date and ends on the 2001 Results Date.
4.3 The Holding Period in relation to a 2002 LTIP Matching Award shall
(unless foreshortened pursuant to paragraphs 6 and 7) be the period
commencing on the Grant Date and ending on the 2003 Results Date.
4.4 In the event that all the conditions in paragraph 4.1 are satisfied,
a Participant shall become entitled to exercise his LTIP Matching Award.
Where the relevant Shares are to be released they shall be released as
soon as reasonably practicable after the end of the relevant Holding
Period. Where the LTIP Matching Award is to be exercised it may be
exercised within three months of the end of the relevant Holding Period or,
if such exercise would be prohibited by law or the Model Code for
Securities Transactions by Directors of Listed Companies (or the Company's
dealing rules) at that time, such exercise may be made within such period,
not exceeding three months, immediately following the date on which such
prohibition ceases, as the Trustee may determine.
4.5 Save as otherwise permitted by these Rules, in the event that the
minimum performance condition referred to in paragraph 5 is not satisfied
at the end of the relevant Holding Period a Participant's LTIP Matching
Award shall automatically lapse.
4.6 Any transfer, assignment, sale, pledge, charge or other disposal of any
Shares the subject of a LTIP Award shall result in the automatic lapse and
forfeiture of the related LTIP Matching Awards.
5. PERFORMANCE CONDITION FOR LTIP MATCHING AWARD
5.1 As soon as practicable after 31 December 2001 and 31 December 2003 the
Committee shall inform the Trustee of the Company's EPS Growth for the
relevant EPS test period referred to in paragraph 5.2 and 5.3 below.
5.2 The EPS test period for a 2001 LTIP Matching Award shall be the period
of two years commencing on 1 January 2000 (the 2001 EPS Test Period)
5.3 The EPS test period for a 2002 LTIP Matching Award shall be the period
of three years commencing on 1 January 2001 (the 2003 EPS Test Period).
5.4 A LTIP Matching Award shall be exercisable in respect of such number
of Shares as represents the percentage of the LTIP Matching Award as shown
in the right hand column below applicable to the relevant LTIP Matching
Award according to the Company's EPS for the 2001 EPS Test Period or the
2002 EPS Test Period (as the case may be) as indicated in the left hand
column below:
Company's EPS Growth 2001 LTIP 2002 LTIP
comparing the year ending Matching Award Matching Award
31 December 1999 with
the year ending
31 December 2001 and
comparing the year ending
31 December 2000 with
the year ending
31 December 2003
40% and greater 100% 100%
10% 25% 25%
Below 10% Nil Nil
5.5 For the purpose of this Schedule in determining EPS Growth and Earnings
per Share in respect of a LTIP Matching Award the definitions of "Base
Year", "EPS Test Period" and "Final Year" in Rule 1 shall not apply and the
following definitions shall apply instead:
(a) "Base Year" means in relation to a 2001 LTIP Matching Award, the
Financial Year ended 31 December 1999 and in relation to a 2002 LTIP
Matching Award, the Financial Year ended 31 December 2000; and
(b) "EPS Test Period" means in respect of a 2001 LTIP Matching Award, the
2001 EPS Test Period and in respect of a 2002 LTIP Matching Award, the 2003
EPS Test Period; and
(c) "Final Year" means in respect of a 2001 LTIP Matching Award, the year
ended 31 December 2001 and in respect of a 2002 LTIP Matching Award, the
year ended 31 December 2003.
6. CESSATION OF EMPLOYMENT
6.1 If a Participant ceases to be an employee of a member of the Group
during the Holding Period by reason of death:
(a) the Holding Period as it relates to the Participant's LTIP Award shall
be treated as coming to an end on the date of death and any LTIP Award
shall be exercisable by the Participant's personal representatives within
the period of 12 months following the date of death; and
(b) the related LTIP Matching Award shall continue to be subject to the
provisions of the Plan as though the Participant had remained in
employment. The Participant's LTIP Matching Award shall be exercisable by
the Participant's personal representatives within 12 months after the end
of the relevant Holding Period subject to paragraph 5 PROVIDED THAT the number
of Shares in respect of which the LTIP Matching Award shall be exercised
as determined pursuant to paragraph 5 shall be reduced by the fraction A/B
(where A is that part of the EPS Test Period relating to the LTIP Matching
Award following the Participant's death (measured in complete months) and
B is 14 in the case of a 2001 LTIP Matching Award and 38 in the case of a
2002 LTIP Matching Award).
6.2 If a Participant ceases to be an employee of a member of the Group
during the relevant Holding Period by reason of:
(a) injury, disability or ill-health;
(b) retirement at or after the date on which he is bound to retire under
his contract of employment or early retirement (as agreed by the Trustee
acting on the recommendation of the Committee); or
(c) any reason other than one stated in this paragraph 6.2 which the
Trustee (acting on the recommendation of the Committee) so decides in its
absolute discretion
the Participant's LTIP Award and the related LTIP Matching Award shall
continue to be subject to the provisions of the Plan (as though the
Participant had remained in employment) until the end of the relevant
Holding Period.
6.3 Where paragraph 6.2 applies:
(a) the Participant's LTIP Award shall be exercisable by him within three
months after the end of the relevant Holding Period or, if such exercise
would be prohibited by law or the Model Code for Securities Transactions
by Directors of Listed Companies (or the Company's dealing rules) at that
time, such exercise may be made within such period, not exceeding three
months, immediately following the date on which such prohibition ceases;
and
(b) the related LTIP Matching Award shall be exercisable by him within
three months after the end of the relevant Holding Period or, if such
exercise would be prohibited by law or the Model Code for Securities
Transactions by Directors of Listed Companies (or the Company's dealing
rules) at that time, such exercise may be made within such period, not
exceeding three months, immediately following the date on which such
prohibition ceases, subject to paragraph 5 PROVIDED THAT the number of Shares
in respect of which the Matching Award shall be exercised as determined
pursuant to paragraph 5 shall be reduced by the fraction A/B (where A is
that part of the EPS Test Period relating to the LTIP Matching Award
following the Participant's cessation of employment (measured in complete
months) and B is 14 in the case of a 2001 LTIP Matching Award and is 38 in
the case of a 2002 LTIP Matching Award).
6.4 If a Participant ceases to be an employee of a member of the Group
during the Holding Period for any reason other than one stated in
paragraphs 6.1 and 6.2 above, the Participant's LTIP Award shall be
released to or exercisable by him within three months after the cessation
of employment or, if such exercise would be prohibited by law or the Model
Code for Securities Transactions by Directors of Listed Companies (or the
Company's dealing rules) at that time, such exercise may be made within
such period, not exceeding three months, immediately following the date on
which such prohibition ceases but any LTIP Matching Award granted to him
shall automatically lapse.
7. CHANGE OF CONTROL, SCHEME OF ARRANGEMENT, WINDING UP, DEMERGER
7.1 If at any time any person (either alone or together with any person
acting in concert with him) obtains Control of the Company as a result of
making an offer (whether by way of a general offer or otherwise) to acquire
the whole of the issued share capital of the Company or all of the Shares
(other than any Shares already owned by him and/or any person acting in
concert with him) which was either unconditional or was made on a condition
such that if it was satisfied, the person making the offer would have
Control of the Company, the performance targets referred to in paragraph
5 applying to a Participant's LTIP Matching Award shall cease to apply and
the Holding Periods applying to his LTIP Awards shall be treated as coming
to an end. Any LTIP Award granted to a Participant shall be exercisable
by him within 30 days of such person acquiring Control and any condition
to which the offer was made has been satisfied. The related LTIP Matching
Award shall be exercisable by the Participant within such 30 day period in
respect of the maximum number of Shares over which it was granted without
having regard to the performance target in paragraph 5 unless prior to the
commencement of the 30 day period the Committee has informed the Trustee
in writing that a lesser number is appropriate having regard to the
underlying financial performance of the Company in which case the
Participant shall be entitled to exercise his LTIP Matching Award only in
respect of such lesser number.
7.1A If any transaction is implemented whereby the shareholders of the
Company immediately prior to the completion of such transaction cease, upon
such completion, to hold the majority of votes capable of being cast on any
matter in relation to the Company (whether by the shareholders of the
Company alone or together with the shareholders of any other company
forming part of a single combined economic enterprise with the Company) the
performance targets referred to in paragraph 5 applying to a Participant's
LTIP Matching Award shall cease to apply and the Holding Periods applying
to his LTIP Awards shall be treated as coming to an end. Any LTIP Award
granted to a Participant shall be exercisable by him within 30 days of the
completion of such transaction. The related LTIP Matching Award shall be
exercisable by the Participant within such 30 day period in respect of the
maximum number of Shares over which it was granted without having regard
to the performance target in paragraph 5 unless prior to the commencement
of the 30 day period the Committee has informed the Trustee in writing that
a lesser number is appropriate having regard to the underlying financial
performance of the Company, in which case the Participant shall be entitled
to exercise his LTIP Matching Award only in respect of such lesser number.
7.2 If any person obtains Control of the Company in pursuance of a
compromise or arrangement sanctioned by the Court under section 425 of the
Companies Act 1985 or any transaction affecting the Company which is
equivalent to such a compromise or arrangement by virtue of the fact that
the company is incorporated under Royal Charter, the performance targets
referred to in paragraph 5 applying to a Participant's LTIP Matching Award
shall cease to apply and the Holding Periods applying to his LTIP Awards
shall be treated as coming to an end. Any LTIP Award granted to a
Participant shall be exercisable by him within 30 days of the Court
sanctioning the compromise or arrangement or any equivalent transaction
becoming effective. The related LTIP Matching Award shall be exercisable
by the Participant within such 30 day period in respect of the maximum
number of Shares over which it was granted without having regard to the
performance targets in paragraph 5 unless prior to the commencement of the
30 day period the Committee has informed the Trustee in writing that a
lesser number is appropriate having regard to the underlying financial
performance of the Company in which case the Participant shall be entitled
to exercise his LTIP Matching Award only in respect of such lesser number.
If as a result of such compromise or arrangement or equivalent transaction
Shares are exchanged for other shares or securities, the references to
Shares in this Rule 7.2 shall be deemed to be references to such other
shares or securities.
7.3 A LTIP Matching Award shall not be exercised under paragraph 7.2
without the consent of the Committee if the purpose and effect of the
compromise or arrangement or equivalent transaction is to create a new
holding company for the Company, such company having substantially the same
shareholders and proportionate shareholdings as those of the Company
immediately prior to the compromise or arrangement.
7.4 If a resolution for the voluntary winding up of the Company is passed
the performance targets referred to in paragraph 5 applying to a
Participant's LTIP Matching Award shall cease to apply and the Holding
Periods applying to his LTIP Awards shall be treated as coming to an end.
Any LTIP Award granted to a Participant shall be exercisable by him within
30 days of the passing of such resolution. The related LTIP Matching Award
shall be exercisable by him within such 30 day period in respect of the
maximum number of Shares over which it was granted without having regard
to the performance targets in paragraph 5 unless prior to the commencement
of the 30 day period the Committee has informed the Trustee in writing that
a lesser number is appropriate having regard to the underlying financial
performance of the Company in which case the Participant shall be entitled
to exercise his LTIP Matching Award only in respect of such lesser number.
7.5 If the Board or Committee becomes aware that the Company is or is
expected to be affected by any demerger, dividend in specie, super dividend
or other transaction, which in the opinion of the Board or Committee would
affect the current or future value of any Awards, the Board or Committee
may recommend to the Trustee to allow a Participant's LTIP Awards and LTIP
Matching Award to be exercised by him within such period and on such terms
whether or not having regard to the performance targets in paragraph 5 as
the Trustee may after consultation with the Board or Committee consider
appropriate. The Trustee may take such action after consultation with the
Board or Committee as it considers appropriate in the circumstances
including in relation to any monies, Shares, shares or other securities it
may receive as a result of any such event.
8. GENERAL
Rules 15 to 18 inclusive of the Rules to the Plan shall apply mutatis
mutandis to a Participant's LTIP Awards and LTIP Matching Awards.
Exhibit C
CARNIVAL CORPORATION
2002 STOCK AWARD PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
Carnival Corporation (the "Company"), having heretofore adopted the Carnival
Corporation 2002 Stock Plan, as amended (the "Plan"), hereby grants Peter
Ratcliffe (the "Optionee"), effective ____________, ______(the "Grant Date"),
the right and option (the "Option") to purchase a total of Fifty Thousand
(50,000) Shares on the following terms and conditions:
1. Executive and P&O Princess Cruises International, Ltd. ("POPCI") executed
an employment agreement, dated April 17, 2003 (as amended, modified or replaced
from time to time, the "Employment Agreement"), and the Option is issued
pursuant to the Employment Agreement. Each defined term used in this Agreement
and not otherwise defined herein shall have the meaning assigned to it in the
Plan.
2. This Option shall not be exercisable, in whole or in part, except as
follows:
a) Exercisable as to Ten Thousand (10,000) Shares on or after the first
anniversary of the Grant Date;
b) Exercisable as to an additional Ten Thousand (10,000) Shares on or after
the second anniversary of the Grant Date;
c) Exercisable as to an additional Ten Thousand (10,000) Shares on or after
the third anniversary of the Grant Date;
d) Exercisable as to an additional Ten Thousand (10,000) Shares on or after
the fourth anniversary of the Grant Date; and
e) Exercisable as to an additional Ten Thousand (10,000) Shares on or after
the fifth anniversary of the Grant Date.
3. Notwithstanding the provisions of paragraph 2, if the Optionee's
employment by POPCI and its affiliates shall terminate by reason of his death
or disability (as described in Paragraph 7 of the Employment Agreement, a
"Disability"), this Option shall become immediately exercisable in full in
respect of the aggregate number of Shares covered hereby.
4. The unexercised portion of this Option shall automatically and without
notice terminate and become null and void at the time of the earliest of the
following to occur:
a) the expiration of ten (10) years from the Grant Date:
b) the expiration of one (1) year from the date the Optionee's employment
with POPCI and its affiliates shall terminate by reason of Disability;
provided, however, that if the Optionee shall die during such one-year period,
the provisions of subparagraph (c) below shall apply;
c) the expiration of one (1) year from the date of the Optionee's death, if
such death occurs either during employment by POPCI or any of its affiliates
or during the one-year period described in subparagraph (b) above;
d) the date the Optionee's employment with POPCI or any of its affiliates is
terminated by POPCI for Cause;
e) the date on which the Optionee terminates his employment with POPCI and
its affiliates prior to attaining sixty (60) years of age, unless such
termination is (i) directly related to the Optionee being diagnosed with a
terminal medical condition, or (ii) for "Good Reason," as defined in Paragraph
12.5 of the Employment Agreement; or
f) the material violation by the Optionee of the noncompetition,
nondisclosure or intellectual property provisions set forth in Paragraphs 8,
9 and 11 of the Employment Agreement.
5. The purchase price for each of the Shares purchased pursuant to this
Option shall be _____________________ Dollars (US$___). [Fair Market Value on
the Grant Date] This Option is not an "incentive stock option" within the
meaning of Section 422(b) of the Code.
6. Unless Optionee utilizes a cashless exercise program, if available and
authorized by the Company from time to time, this Option shall be deemed
exercised when the Optionee (a) delivers written notice to the Company at its
principal business office, directed to the attention of its Secretary, of the
decision to exercise, specifying the number of shares with respect to which
this Option is exercised and the price per share designated in this Option, and
(b) concurrently tenders to the Company full payment for the Shares to be
purchased pursuant to such exercise. Full payment for Shares purchased by the
Optionee shall be made at the time of any exercise, in whole or in part, of
this Option. No Shares shall be transferred to the Optionee until full payment
therefor has been made, and the Optionee shall have none of the rights of a
shareholder with respect to any Shares subject to this Option until a
certificate for such shares shall have been issued and delivered to the
Optionee. Such payment shall be made in cash or by check or money order
payable to the Company, in each case payable in U.S. Currency. (In the
Committee's discretion, such payment may be made by (i) delivery of Mature
Shares having a fair market value determined as of the date this Option is so
exercised in whole or in part that, when added to the value of any cash, check,
promissory note or money order satisfying the foregoing requirements, will
equal the aggregate purchase price, or (ii) any other method described in
Section 7(b) of the Plan.)
7. This Option and the rights evidenced hereby are not transferable in any
manner other than by will or by the laws of descent and distribution and
during the Optionee's lifetime shall be exercisable only by the Optionee (or
the Optionee's court-appointed legal representative).
8. The Company's obligation to deliver Shares upon the exercise of this
Option shall be subject to the Optionee's payment of all applicable federal,
state and local tax withholding requirements; provided the Committee may, in
its sole discretion, allow such tax withholding obligation to be satisfied by
any other method described in Section 8(d) of the Plan. The Company may
withhold delivery of Shares until the Optionee pays to the Company the amount
of tax it is required to withhold under any applicable law. If the Optionee
fails to remit to the Company such tax, the Company may withhold such portion
of the Shares as are sufficient to satisfy the Company's obligation to withhold
such tax.
9. The Company's obligation to deliver Shares in respect of this Option shall
be subject to all applicable laws, rules and regulations and such approvals by
any governmental agency as may be required.
10. The Optionee, by his acceptance hereof, represents and warrants to the
Company that his purchase of Shares upon the exercise of this Option shall be
for investment and not with a view to, or for sale in connection with, the
distribution of any part thereof; provided, however, that this representation
and warranty shall be inoperative if, in the opinion of counsel to the Company,
a proposed sale of distribution of such shares is pursuant to an applicable
effective registration statement under the Securities Act and any applicable
state "blue sky" or other securities laws or is exempt from registration
thereunder. The Company will endorse an appropriate legend referring to the
foregoing restriction upon the certificate or certificates representing any
Shares issued or transferred to the Optionee upon the exercise of this Option.
11. This Agreement shall be subject to all the terms and provisions of the
Plan, which are incorporated by reference herein and are made a part hereof,
including without limitation the provisions of (i) Section 9 of the Plan
generally relating to adjustments to the number of Shares subject to this
Option and to the Option purchase price on certain changes in capitalization
and the effects of certain reorganizations and other transactions, and (ii)
Section 10 of the Plan relating to the effect of a Change of Control of the
Company. In the event there is any inconsistency between the provisions of
this Agreement and the Plan, the provisions of the Plan shall govern. By
entering into this Agreement, the Optionee agrees to the foregoing and
acknowledges his receipt of a copy of the Plan.
12. The Committee shall have final authority to interpret and construe the
Plan and this Agreement and to make any and all determinations under them, and
its decision shall be binding and conclusive upon the Company, its Affiliates,
the Optionee and the Optionee's legal representatives and beneficiaries in
respect of any questions arising under the Plan or this Agreement.
13. Nothing in the Plan or in this Agreement shall confer upon the Optionee
any right to continue in the employ of the Company or any Affiliate or shall
interfere with or restrict in any way the right of the Company or any Affiliate
which are hereby expressly reserved, to remove, terminate or discharge the
Optionee at any time for any reason whatsoever.
14. No change, modification or waiver of any provision of this Agreement
shall be valid unless the same be in writing and signed by the parties hereto.
15. This Agreement, the Employment Agreement and the Plan contain the entire
agreement and understanding of the parties hereto with respect to the
subject matter contained herein and therein and supersede all prior
communications, representations and negotiations in respect thereto.
16. This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Company has caused these presents to be signed by its
duly authorized officer as of the ___ day of _________, 200_.
CARNIVAL CORPORATION
By:_______________________________
(i) [Name]
Title:
ACCEPTED AND AGREED THIS _____
DAY OF _________, 200_.
_____________________________
Peter Ratcliffe
Optionee
EXHIBIT D
17 October 2001
PERSONAL
STRICTLY PRIVATE & CONFIDENTIAL
P G Ratcliffe Esq
47 Marlboro Lane
Bell Canyon
California 91307
USA
Dear Peter
Your pension arrangements
I am writing to formalise and set out the details of the pension and life
assurance arrangements of P&O Princess Cruises PLC ("P&O Princess") which
apply to you. The pension and life assurance arrangements set out in this
letter supersede all earlier pension promises made to you (whether by P&O
Princess or The Peninsular and Oriental Steam Navigation Company ("P&O")).
However the promises described in this letter are subject to the terms of
the forfeiture agreement between you and P&O Princess dated 16 January 2001
and your continuing membership of the Princess Cruises Supplemental
Executive Retirement Plan and the Princess Cruises Plan (both US pension
plans) and rights arising therefrom.
You will continue to be a member of the P&O Princess Cruises Pension Scheme
("the Scheme") as a Level One Senior Executive member. This letter summarises
the main features of the Scheme as it applies to you and describes the
enhancements to your benefits which exceed those normally applicable to a Level
One Senior Executive member. Accordingly full details of your benefits are
contained in the trust deed and rules governing the Scheme ("the Rules") as
amended by the terms of this letter. Where there is any inconsistency between
this letter and the Rules, this letter will override.
Senior Executive member benefits (formerly known as Level Two benefits)
Although you are a Level One Senior Executive member you may elect at the date
of your retirement to be treated as an ordinary Senior Executive member. If
you make this election you must do so in writing to the trustee of the Scheme
and it is irrevocable. The benefits which apply to ordinary Senior Executive
members are set out in the Rules but for convenience are summarised in this
letter.
Contributions
You are not required to pay contributions to the Scheme but part of P&O
Princess' contribution due in respect of you (such part amounting to 5% of
pensionable earnings less one and a half times the Lower Earnings Limit, as
defined in the Social Security Contributions and Benefits Act 1992) will be
treated for the purposes of benefits payable on your death in service as having
been paid by you. In your case pensionable earnings comprise basic pay only.
2.
Normal retirement
Your normal retirement date is your 60th birthday. At normal retirement date
you will be entitled to a pension of two-thirds of final pensionable earnings.
Final pensionable earnings are the higher of:-
(a) the pensionable earnings you received in the twelve months ending
on the last day of your active membership of the Scheme; and
(b) the annual average of pensionable earnings over the period of three
consecutive tax years which gives the highest result out of the 13 years
ending on the last day of your active membership of the Scheme.
You will also be entitled to a cash lump sum of five times the Lower
Earnings Limit in force on the date of retirement.
However if you elect to be treated as an ordinary Senior Executive
member you will be entitled to a pension (in addition to the cash lump sum
above) equal to the sum of:-
(a) 1/60th of final pensionable earnings for the period of your
pensionable service from 1 June 1973 to 31 March 1988 together with two
service credit periods of 250 days and 1 year 258 days (in total this
amounts to approximately 28.7% of final pensionable earnings); and
(b) 1/45th of final pensionable earnings for each year of pensionable
service (and pro rata for a fraction of one year) on and from 1 April 1988.
Early retirement
(a) If you do not elect to be treated as an ordinary Senior Executive member
If you leave the service of P&O Princess after your 55th birthday (or earlier,
if at the request of P&O Princess) you will receive (subject to the Inland
Revenue limits) an immediate pension of two-thirds of final pensionable
earnings. No actuarial reduction will be applied to your benefit on account
of its early payment.
If you leave service voluntarily before your 55th birthday the pension payable
by the Scheme will calculated in accordance with the formula:-
N/NS x P
Where N equals your actual service with P&O and P&O Princess, NS equals your
total potential service with the two companies up to your normal retirement
date and P equals two-thirds of final pensionable earnings less any retained
benefits (see Important Limitations below). Service is measured in days and
in both cases includes the two service credits (referred to above). As you
have already completed more than 25 years' pensionable service your benefit
would not be actuarially reduced (after application of the above formula) to
take into account of early payment.
3.
You will also be entitled to a proportion of the cash lump sum which
would have been payable had you retired at your normal retirement date
(based on the Lower Earnings Limit in force at your actual date of
retirement). Such proportion will be calculated using the above formula
(N/NS).
(b) If you elect to be treated as an ordinary Senior Executive member
If you retire at the request of P&O Princess you will be entitled (in
addition to the cash lump sum above) to an immediate pension of the same
amount as would have been payable to you as an ordinary Senior Executive
member at normal retirement date based on final pensionable earnings at and
pensionable service accrued up to your retirement (no actuarial reduction
will be applied to your benefit on account of its early payment).
If you retire in other circumstances you will be entitled to an
immediate pension of the same amount as would have been payable to you as an
ordinary Senior Executive member at normal retirement date based on final
pensionable earnings at and pensionable service accrued up to your
retirement but actuarially reduced to account for early payment.
Pensions general
When you retire you will be entitled to commute part of your pension for a lump
sum in accordance with the Rules. The Rules provide that your pension (and any
pension payable to your wife) will increase in payment by reference to UK
retail price inflation but restricted to 3% for service before 6 April 1997 and
restricted to 5% for service on or after that date. The trustee of the Scheme
and P&O Princess may award further discretionary increases under the Rules.
Death in service
In the event of your death in service a lump sum will be paid to your
dependants. The amount payable will be four times your pensionable earnings
at the date of death together with a refund of your own contributions (or
contributions deemed to have been paid by you in accordance with this letter).
The lump sum is payable in accordance with discretionary powers under the
Rules. You may complete a nomination form which the trustee of the Scheme will
take into account when exercising its discretion but the trustee will not be
bound by your wishes.
A widow's pension is also payable on death in service equal to the greater of:-
(a) 66% of the pension to which you would have been entitled at normal
retirement date based on your final pensionable earnings at the date of your
death (i.e. 66% of two-thirds of your pensionable earnings); and
(b) 60% of the pension to which you would have been entitled at normal
retirement date had you elected to be treated as an ordinary Senior
Executive member and based on your final pensionable earnings at the date of
your death.
4.
Death in retirement
On death after retirement a widow's pension is payable of an amount equal to
66% of your pension (before any commutation). In addition if you die within
five years of retirement a lump sum will be payable to your dependants (under
the discretionary powers referred to above). The amount of the lump sum will
be the balance of the first five years' pension payments less the aggregate
instalments of widow's pension expected to be payable during the remainder of
that period.
If at your retirement you elected to be treated as an ordinary Senior Executive
member then on death after retirement the widow's pension is 60% of your
pension (before any commutation). The five year guarantee described above
would still apply.
Other dependant's pensions
In certain circumstances a dependant's pension may be payable (either to a
child or adult dependant) in each case based on a proportion of the widow's
pension set out in this letter. Full details of these pensions are contained
in the Rules.
Currency
All benefit entitlements and contributions due to the Scheme in respect of you
are expressed and will be payable in US dollars. The trustee of the Scheme can
make arrangements for your pension instalments to paid by direct credit into
your US bank account.
Important limitations
All benefits described in this letter are subject to the limits imposed on the
Scheme by the Inland Revenue. The value of any retained benefits (as defined
in the Inland Revenue practice notes IR12) will be deducted in calculating the
benefits payable in accordance with this letter. Broadly these comprise any
pension benefits you have earned from employments prior to your employment with
P&O.
P&O Princess reserves the right to stop providing these benefits insofar as
they are attributable to future service (or vary those future service
benefits). Immediate notice to that effect can be given by the company at any
time after which the benefits which have accrued prior to the date of the
notice will be payable in accordance with the Rules.
The terms of this letter shall not in any way affect the right of P&O Princess
or you to terminate your employment in accordance with any contract or service
agreement in force from time to time.
Please confirm your agreement by signing and returning the enclosed copy of
this letter
Kind regards
Yours sincerely
/s/ Peter Foy
Peter Foy
Chairman of the Remuneration Committee
I confirm my agreement to the terms set out above.
Signed/s/Peter Gervis Ratcliffe
16 January 2001
P&O PRINCESS CRUISES PLC
P&O PRINCESS CRUISES
PENSION TRUSTEE LIMITED
PETER GERVIS RATCLIFFE
AGREEMENT
THIS AGREEMENT is made on 16 January 2001
BETWEEN
P&O Princess Cruises plc, a company (registered number 4039524) which has its
registered office at 77 New Oxford Street, London WC1A 1PP ("the Company");
P&O Princess Cruises Pension Trustee Limited, a company (registered number
4069014) which has its registered office at 77 New Oxford Street, London WC1A
1PP ("the Trustee"); and
Peter Gervis Ratcliffe of 47 Marlboro Lane, Bell Canyon, California 91307, USA
("the Participant").
WHEREAS
(A) The Participant, who is employed by the Company has taken up a position in
the USA which requires him to reside in the USA and, as a result, be subject
to taxation in the USA.
(B) During his tenure of this position and afterwards while he is in receipt
of benefits, he will be a member of the P&O Princess Cruises Pension Scheme
("the Plan").
IT IS HEREBY AGREED AS FOLLOWS:
1. Pursuant to clause 9 (2) of the Trust Deed and Rules governing the Plan, the
Trustee (as trustee of the Plan) with the consent of the Company and the
Participant hereby determines that:
(a) subject to (b) below, while the Participant remains a member of the Plan,
the benefits of and in respect of the Participant's membership of the Plan
in excess of those which had accrued as a right or entitlement on 1 September
1986 and which have not yet been paid to him will be subject to forfeiture if:
(i) the Participant is convicted in a court of law of having
committed a fraudulent act or omission against the Company or
the Plan; and
(ii)that act or omission gives rise to a monetary obligation by the
Participant towards the Company or the Plan as the case may be;
and
(iii) the amount of that monetary obligation is equal to or exceeds
the value of the Participant's benefits referred to above; and
(b) where a forfeit applies under (a) above:
(i) the Participant must be given a certificate showing the amount
forfeited and its effect on his total benefits under the Plan;
and
(ii)where there is a dispute as to the amount to be forfeited, that
amount must not be forfeited unless the obligation in question
has become enforceable under an order of a competent court or
in consequence of an award of an arbitrator.
SIGNED as a DEED and delivered )
by the PARTICIPANT )
in the presence of: )
SIGNED as a DEED for and on behalf of )
P&O PRINCESS CRUISES PLC by )
a director and the secretary )
SIGNED as a DEED for and on behalf of )
P&O PRINCESS CRUISES PENSION )
TRUSTEE LIMITED by )
a director and the secretary )
EXHIBIT E
FORM OF RELEASE
RELEASE, by PETER RATCLIFFE (the "Executive") in favor of CARNIVAL CORPORATION,
CARNIVAL PLC and THEIR SUBSIDIARIES AND AFFILIATES (the "Companies").
1. In consideration for the "Severance" provided to the Executive pursuant
to Section 12.4 the employment agreement, dated April 17, 2003, between the
Executive and P&O Princess Cruises International, Ltd. (the "Employment
Agreement"), the Executive knowingly and voluntarily waives, terminates,
cancels and releases forever whatever rights, claims or causes of action he
(or his heirs, executors, administrators, successors, assigns and legal
representatives) may have or may yet have against the Companies, and each of
their respective successors or assigns, shareholder, directors, officers and
employees (collectively, the "Released Parties"), whether known or unknown,
based upon any matter, cause or thing occurring at any time before and
including the date of this Release, except as provided in Paragraph 9 below.
2. Paragraph 1 includes, but is not limited to, claims under federal,
state or local law or the national or local law of any other country
(statutory or decisional) for wrongful or abusive or unfair discharge or
dismissal, for impairment of economic opportunity or for discrimination
based upon race, color, ethnicity, sex, age, national origin, religion,
disability, sexual orientation or any other unlawful criterion or
circumstance. Such released rights and claims include, but are not limited
to, rights or claims under the U.S. Age Discrimination in Employment Act of
1967 ("ADEA").
3. The Executive acknowledges that he has not filed any complaint, charge,
claim or proceeding against any of the Released Parties before any local,
state or federal agency, court or other body relating to his employment or
the resignation thereof (each individually a "Proceeding").
4. Except as provided in Paragraph 8 below, the Executive (i) acknowledges
that he will not initiate or cause to be initiated on his behalf any
Proceedings and will not participate in any Proceeding, in each case, except
as required by law; and (ii) waives any right he may have to benefit in any
manner from any relief (whether monetary or otherwise) arising out of any
Proceeding, including any Proceeding conducted by the Equal Employment
Opportunity Commission ("EEOC"). Further, the Executive understands that by
entering into this Release, he will be limiting the availability of certain
remedies that he may have against the Companies and limiting also his
ability to pursue certain claims against the Released Parties.
Notwithstanding the above, nothing in this Release shall prevent the
Executive from (i) initiating or causing to be initiated on his behalf any
complaint, charge, claim or proceeding against the Companies before any
local, state or federal agency, court or other body challenging the validity
of the waiver of his claims under ADEA contained in Paragraph 2 hereof (but
no other portion of such waiver); or (ii) initiating or participating in an
investigation or proceeding conducted by the EEOC.
5. The Executive affirms that, prior to the execution of this Release, the
Executive was advised to consult with an attorney of his choice concerning
the terms and conditions of this Release and that he has been given up to 21
days to consider signing this Release. The Executive understands that he
has seven days following his signing to revoke and cancel this Release, and
the terms and conditions of this Release will not become effective or
enforceable until the revocation period has expired. The Executive agrees
that a revocation will only be effective if he furnishes written notice to
the General Counsel of Carnival Corporation within such seven-day period.
6. THE EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS READ THIS RELEASE
CAREFULLY, HAS BEEN ADVISED BY THE COMPANIES TO CONSULT AN ATTORNEY, AND
FULLY UNDERSTANDS THAT BY SIGNING BELOW HE IS GIVING UP CERTAIN RIGHTS WHICH
HE MAY HAVE TO SUE OR ASSERT A CLAIM AGAINST ANY OF THE RELEASED PARTIES, AS
DESCRIBED IN THE OTHER PROVISIONS HEREOF. THE EXECUTIVE ACKNOWLEDGES THAT
HE HAS NOT BEEN FORCED OR PRESSURED IN ANY MANNER WHATSOEVER TO SIGN THE
AGREEMENT AND THE EXECUTIVE AGREES TO ALL OF ITS TERMS VOLUNTARILY.
7. Further, it is a condition of this Agreement, and the Executive
confirms, that he has received independent legal advice from a relevant
independent adviser, [INSERT NAME OF ADVISOR], as to the terms and effect of
this Agreement in particular its effect on his ability to pursue his rights
before an Employment Tribunal in England and Wales, that the conditions in
Section 203 of the Employment Rights Act 1996 and the equivalent provisions
in the Sex Discrimination Act 1975, the Race Relations Act 1976 and the
Disability Discrimination Act 1995, the Working Time Regulations 1998, the
Trade Union and Labour Relations (Consolidation) Act 1992, and the
Transnational Information and Consultation of Employees Regulations 1999
regulating compromise agreements are satisfied and that the relevant
independent adviser named in this clause will provide to the Companies'
solicitors forthwith upon the execution by the Executive of this Release a
letter duly signed and dated in the form of the agreed draft at Schedule 1.
8. This Release is governed by the law of the State of Florida, without
giving effect to principles of conflicts of law. Notwithstanding the
foregoing, if and to the extent it should be determined that this Release is
governed by the laws of the State of California, the Parties acknowledge
that this Release is a special release and that Section 1542 of the Civil
Code of the State of California is not applicable. If such Section is
applicable, contrary to the Parties' acknowledged intention and agreement,
and that this Release is not special release, each party specifically waives
the benefit of the provisions of Section 1542 of the Civil Code of the State
of California, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THIS RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
9. Notwithstanding any contrary term of this Release, (a) this Release
will not terminate, cancel or release (1) the obligations of the Companies
under the Employment Agreement, or (2) the Executive's entitlement to any
"Accrued Plan Benefits," as defined in the Employment Agreement, and (b)
this Release shall terminate and have no further force or effect if any
action is brought is brought by any Released Party against the Executive (or
his heirs, executors, administrators, successors, assigns or legal
representatives) relating to matters occurring prior to the date of this
Release.
____________ ___, 200_
Peter Ratcliffe
Schedule 1
LETTER FROM INDEPENDENT ADVISER
I, [NAME] OF [FIRM], am [qualified lawyer and] relevant independent adviser
within the meaning of Section 203(4) of the Employment Rights Act 1996 and
the equivalent provisions in the Sex Discrimination Act 1975, Race Relations
Act 1976, Disability Discrimination Act 1995, Working Time Regulations 1998,
Trade Union and Labour Relations (Consolidation) Act 1992, and Transnational
Information and Consultation of Employees Regulations 1999.
I have advised Peter Ratcliffe on the terms and effect of the Release by
Peter Ratcliffe in favor of Carnival Corporation, Carnival plc and their
subsidiaries and associates dated [_________], in particular its effect on
his ability to pursue his rights before an Employment Tribunal.
I confirm that at the time of giving that advice there was a contract of
insurance, or an indemnity provided for members of a professional body,
covering the risk of a claim by Peter Ratcliffe in respect of any loss which
may arise in consequence of the advice.
Signed
Dated:
Exhibit 10.4
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Mr. Micky M. Arison
Carnival Corporation
3655 NW 87th Avenue
Miami, FL 33178-2428
Dear Micky,
I am pleased to confirm your appointment (the "Appointment") as a director
of P&O Princess Cruises plc (to be renamed Carnival plc (the "Company")).
The terms of the Appointment are set forth below and is conditioned upon
the Company's board of directors (the "Board") having passed the
resolutions necessary to give effect to the Appointment, the completion of
the DLC transaction with Carnival Corporation ("Carnival") and your
signing this appointment letter.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles
regarding appointment, expenses, retirement, disqualification and removal
of directors of the Company and will terminate forthwith without any
entitlement to compensation if:
1.1.1 you are not re-elected at an Annual General Meeting of the
Company at which you retire and offer yourself for
re-election in accordance with the Articles; or
1.1.2 you are required to vacate office for any reason pursuant to
any of the provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to
vacate office under any applicable law.
1.2 You will at the request of the Company or Carnival immediately resign
(in writing) from the office of director of the Company and any other
office with a Group company and you irrevocably authorise the Company or
Carnival as your attorney in your name and on your behalf to sign all
documents and do all things necessary to give effect to this.
1.3 On termination of the Appointment, you will (a) cease to be a
director of Carnival, in accordance with the articles of incorporation and
by-laws of Carnival and (b) surrender to an authorised representative of
the Company or Carnival all correspondence, documents (including without
limitation board minutes and board papers), copies thereof or other
property of the Company and of any member of the Group made or received by
you in the course of your directorship (whether before or after the date
of this letter).
1.4 You hereby agree that on termination you shall not be entitled to and
shall not pursue any action or claim for compensation from the Company.
2. Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed to by the Board (the "Duties"). You will have all the
usual Duties of a director under English law and will be expected to
devote such time as is necessary for the proper performance of the Duties.
In carrying out the Duties you shall have particular regard to your role
as a director in the light of the Listing Rules and the Combined Code and
its policy for the time being relating to compliance with the requirements
of the Combined Code as well as such US equivalents, if applicable.
2.2 During the continuance of the Appointment you will be expected to
comply where relevant with any rule of law or regulation of any competent
authority or of the Company including the Model Code published by the
London Stock Exchange in relation to dealings in shares, debentures and
other securities of the Company and unpublished price sensitive
information affecting the shares, debentures or other securities of the
Company, as from time-to-time in force.
2.3 The Company acknowledges that the Appointment comprises part of your
duties pursuant to your office as director of Carnival. You shall carry
out the Duties as part of your duties to Carnival and you will not receive
any additional remuneration from the Company in respect of the Duties or
the Appointment. The Company further acknowledges that you are expected
to continue to carry out your existing duties to Carnival and that your
office as a director of Carnival will continue to be regulated by any
agreement between you and Carnival and will be subject to Carnival's
articles of incorporation and by-laws.
2.4 The Company will reimburse to you reasonable expenses incurred by
you in the proper performance of the Duties. The Company may request
receipts or other evidence of expenditure prior to any reimbursement
pursuant to this clause 2.4. The reimbursement arrangements are subject to
change as determined by the Board from time to time.
3. Confidential Information
3.1 You agree that, neither during the continuance of the Appointment
nor afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), will you use for your own or another's benefit or
disclose or permit the disclosure of any confidential information of any
member of the Group which you have obtained by virtue of the Appointment
or your employment by Carnival or in respect of which the Company is bound
by an obligation of confidence to a third party. Confidential information
shall include, without limitation, lists or details of customers,
information relating to the working of any product, process, invention,
improvement or development carried on or used by any member of the Group,
information relating to research projects, know-how, prices, discounts,
mark-ups, future business strategy, marketing, tenders, any price
sensitive information and information concerning the Company's
intellectual property portfolio and strategy.
3.2 The restrictions contained in this clause shall cease to apply to
any confidential information which may (other than by reason of your
breach of these terms) become available to the public generally, but any
such use will be subject to any restrictive covenants to which you are a
party.
4. Indemnity
In the event that you are made a party or are threatened to be made a
party to or witness in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that you are or were a director of the Company, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including legal fees and expenses to enforce this indemnity)
actually and reasonably incurred by you in connection with such action,
suit or proceeding and against judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding and (ii) pay
or advance to you in advance of final disposition of such action, suit or
proceeding, within 20 days of the submission of an invoice therefore, all
such expenses incurred in connection therewith, in each case of (i) and
(ii) to the fullest extent permitted by the Companies Act 1985 as amended
and any other applicable law or regulation, as from time to time in
effect. Such right of indemnification and advancement of expenses shall
be without prejudice to any other rights to which you may be entitled.
5. Insurance
To the extent possible, the Company will use its reasonable endeavours
to maintain, directly or through Carnival, appropriate directors' and
officers'
liability insurance for your benefit.
6. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct
and ethics in substantially the same form as that which applies to
Carnival
and its subsidiaries. You agree to observe the provisions of any such
code
of business conduct and ethics.
7. Restrictive Covenants
It is a condition of the Appointment that you agree as follows:
if the Appointment shall be terminated at any time, for any reason,
you will not at any time within 12 months after such expiration or
termination, without the prior written approval of the Chairman or Vice
Chairman of the Company, directly or indirectly:
(a) engage in any business activity directly or indirectly
competitive with the business of the Company, Carnival or any
of their subsidiaries or affiliates; or
(b) serve as an officer, director, owner, consultant or employee
of any organization then in competition with the Company,
Carnival or any of their subsidiaries or affiliates.
8. Miscellaneous
8.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
8.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject to the
exclusive jurisdiction of the English courts.
9. Entire Agreement
This appointment letter represents the entire understanding, and
Constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
10. Definitions
In this letter:
10.1 "Articles" means the articles of association from time to time of
the Company;
10.2 "Combined Code" means the principles of good governance and code of
best practice prepared by the Committee on Corporate Governance which is
appended to the Listing Rules;
10.3 "Group" means the Company and any subsidiary or subsidiary
undertaking of the Company (both as defined in the Companies Act 1985, as
amended);
10.4 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
"London Stock Exchange" means London Stock Exchange plc;
10.5 "Model Code" means the model code on directors' dealings in
securities set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full
name, address and occupation. Please return the copy to me at the above
address.
Yours sincerely
/S/ Howard S. Frank
Howard S. Frank
Vice Chairman Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Micky Arison
/S/ M. Arison
in the presence of
/S/ A. Perez Witness Signature
Arnaldo Perez Full Name
10220 SW 68CT Address
Miami FL
Lawyer Occupation
Exhibit 10.5
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 17th day of April, 2003,
between Carnival Corporation, a Panamanian corporation (the "Company"),
and Micky Arison (the "Director").
The Company, in order to induce the Director to serve on the
Company's board of directors, wishes to indemnify the Director against
certain expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director (or the Director's heirs, executors
or administrators) is made a party or is threatened to be made a party to
or witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director of the Company or P&O
Princess Cruises plc, a public limited company incorporated in England and
Wales, the Company shall (i) indemnify the Director against all expenses
of any kind whatsoever (including attorneys' fees and expenses to enforce
this agreement) actually and reasonably incurred by the Director in
connection with such action, suit or proceeding and against judgments,
fines and amounts paid in settlement in connection with such action, suit
or proceeding and (ii) pay or advance to such indemnitee in advance of
final disposition of such action, suit or proceeding, within 20 days of
the submission of an invoice therefore, all such expenses incurred in
connection therewith, in each case of (i) and (ii) to the fullest extent
and in the manner set forth in and permitted by the General Corporation
Law of the Republic of Panama and any other applicable law, as from time
to time in effect. Such right of indemnification and advancement of
expenses shall not be deemed exclusive of any other rights to which the
Director may be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by a duly authorized officer, as of
the date first above written.
CARNIVAL CORPORATION
By: /S/ Howard S. Frank
Howard S. Frank, Vice Chairman
and Chief Operating Officer
By: /S/ M Arison
Micky Arison
Exhibit 10.6
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Richard G. Capen, Jr.
6077 San Elijo
P.O. Box 2494
Rancho Santa Fe, CA 92067
Dear Dick,
I am pleased to confirm your appointment (the "Appointment") as a director
of P&O Princess Cruises plc (to be renamed Carnival plc (the "Company")).
The terms of the Appointment are set forth below and is conditioned upon
the Company's board of directors (the "Board") having passed the
resolutions necessary to give effect to the Appointment, the completion of
the DLC transaction with Carnival Corporation ("Carnival") and your
signing this appointment letter. It is agreed that this is a contract for
services and is not a contract of employment.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles
regarding appointment, expenses, retirement, disqualification and removal
of directors of the Company and will terminate forthwith without any
entitlement to compensation if:
1.1.1 you are not re-elected at an Annual General Meeting
of the Company at which you retire and offer yourself
for re-election in accordance with the Articles; or
1.1.2 you are required to vacate office for any reason pursuant
to any of the provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to
vacate office under any applicable law.
1.2 You will at the request of the Company or Carnival immediately resign
(in writing) from the office of director of the Company and any other
office with a Group company and you irrevocably authorise the Company or
Carnival as your attorney in your name and on your behalf to sign all
documents and do all things necessary to give effect to this.
1.3 On termination of the Appointment, you will (a) cease to be a director
of Carnival, in accordance with the articles of incorporation and by-laws
of Carnival and (b) surrender to an authorised representative of the
Company or Carnival all correspondence, documents (including without
limitation board minutes and board papers), copies thereof or other
property of the Company and of any member of the Group made or received
by you in the course of your directorship (whether before or after the
date of this letter).
1.4 You hereby agree that on termination you shall not be entitled to and
shall not pursue any action or claim for compensation from the Company.
2.Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed by the Board (the "Duties"). You will have all the usual
Duties of a director under English law and will be expected to devote such
time as is necessary for the proper performance of the Duties including
attendance wherever practicable at regular and emergency Board meetings,
meetings of committees of the Board to which you are appointed, the annual
general meeting of the Company and any extraordinary general meeting of
the Company. In addition, you will be expected to devote appropriate
preparation time ahead of each meeting.
2.2 By accepting this Appointment, you have confirmed that you are able to
allocate sufficient time to meet the expectations of your role.
2.3 In carrying out the Duties you shall have particular regard to your
role as a director in the light of the Listing Rules and the Combined Code
and its policy for the time being relating to compliance with the
requirements of the Combined Code as well as such US equivalents, if
applicable.
2.4 During the continuance of the Appointment you will be expected to
comply where relevant with any rule of law or regulation of any competent
authority or of the Company including the Model Code published by the
London Stock Exchange in relation to dealings in shares, debentures and
other securities of the Company and unpublished price sensitive
information affecting the shares, debentures or other securities of the
Company from time-to-time in force.
2.5 You will not receive any remuneration from the Company in respect of
the Duties or the Appointment. The Company further acknowledges that you
are expected to continue to carry out your existing duties to Carnival and
that your office as a director of Carnival will continue to be regulated
by any agreement between you and Carnival and will be subject to
Carnival's articles of incorporation and by-laws.
2.6 The Company will reimburse to you reasonable expenses incurred by you
in the proper performance of the Duties. The Company may request receipts
or other evidence of expenditure prior to any reimbursement pursuant to
this clause 2.6. The reimbursement arrangements are subject to change as
determined by the Board from time to time.
3. Role
3.1 Non-executive directors have the same general legal responsibilities
to the Company as any other director. The Board as a whole is
collectively responsible for promoting the success of the company by
directing and supervising the Company's affairs. The Board:
3.1.1 Provides entrepreneurial leadership of the Company within
a framework of prudent and effective controls which
enable risk to be assessed and managed;
3.1.2 Sets the Company's strategic aims, ensures that the
necessary financial and human resources are in place for
the company to meet its objectives, and reviews
management performance; and
3.1.3 Sets the Company's values and standards and ensures that
its obligations to its shareholders and others are
understood and met.
3.2 In addition to these requirements of all directors, the role of the
non-executive has the following key elements:
3.2.1 Strategy: Non-executive directors should constructively
challenge and contribute to the development of strategy;
3.2.2 Performance: Non-executive directors should scrutinize
the performance of management in meeting agreed goals and
objectives and monitor the report of performance;
3.2.3 Risk: Non-executive directors should satisfy themselves
that financial information is accurate and that
financial controls and systems of risk management are
robust and defensible; and
3.2.4 People: Non-executive directors are responsible for
determining appropriate levels of remuneration of
executive directors and have a prime role in
appointing, and where necessary removing, senior-
management and in succession planning.
4. Outside Interests
It is accepted and acknowledged that you have business interests other
than those of the Company and have declared any conflicts that are
apparent at present. In the event that you become aware of any potential
conflicts of interest, these should be disclosed to the Chairman and
Company Secretary as soon as apparent. You must consult with the Chairman
or Vice-Chairman before accepting any major external appointment or any
directorships in any publicly-quoted companies.
5. Confidential Information
5.1 You agree that, neither during the continuance of the Appointment nor
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), will you use for your own or another's benefit or
disclose or permit the disclosure of any confidential information of any
member of the Group which you have obtained by virtue of the Appointment
or your employment by Carnival or in respect of which the Company is bound
by an obligation of confidence to a third party. Confidential information
shall include, without limitation, lists or details of customers,
information relating to the working of any product, process, invention,
improvement or development carried on or used by any member of the Group,
information relating to research projects, know-how, prices, discounts,
mark-ups, future business strategy, marketing, tenders, any price
sensitive information and information concerning the Company's
intellectual property portfolio and strategy.
5.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use
will be subject to any restrictive covenants to which you are a party.
6. Induction
After your Appointment, the Company will provide a comprehensive, formal
and tailored induction. The Company, upon your request, will arrange for
site visits and meetings with senior and middle management and the
Company's auditors.
7. Review Process
The performance of individual directors and the whole board and its
committees is evaluated annually. If, in the interim, there are any
matters which cause you concern about your role you should discuss them
with the Chairman as soon as is appropriate.
8. Indemnity
In the event that you are made a party or are threatened to be made a
party to or witness in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that you are or were a director of the Company, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including legal fees and expenses to enforce this indemnity)
actually and reasonably incurred by you in connection with such action,
suit or proceeding and against judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding and (ii) pay
or advance to you in advance of final disposition of such action, suit or
proceeding, within 20 days of the submission of an invoice therefore, all
such expenses incurred in connection therewith, in each case of (i) and
(ii) to the fullest extent permitted by the Companies Act 1985 as amended
and any other applicable law or regulation, as from time to time in
effect. Such right of indemnification and advancement of expenses shall
be without prejudice to any other rights to which you may be entitled.
9. Insurance
To the extent possible, the Company will use its reasonable endeavours to
maintain, directly or through Carnival, appropriate directors' and
officers' liability insurance for your benefit. A copy of the current
policy will be provided at induction.
10. Independent Professional Advice
Occasions may arise when you consider that you need professional advice in
the furtherance of your duties as a director. Circumstances may occur
when it will be appropriate for you to seek advice from independent
advisors at the Company's expense. If it is practicable to do so, you
shall seek such advice after consultation with the chairman or vice-
chairman. The Company shall reimburse the full cost of all reasonable
expenditure incurred in obtaining such advice.
11. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct
and ethics in substantially the same form as that which applies to
Carnival and its subsidiaries. You agree to observe the provisions of any
such code of business conduct and ethics.
12. Miscellaneous
12.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
12.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject to the
exclusive jurisdiction of the English courts.
13. Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
14. Definitions
In this letter:
14.1 "Articles" means the articles of association from time to time of the
Company;
14.2 "Combined Code" means the principles of good governance and code of
best practice prepared by the Committee on Corporate Governance which is
appended to the Listing Rules;
14.3 "Group" means the Company and any subsidiary or subsidiary
undertaking of the Company (both as defined in the Companies Act 1985, as
amended);
14.4 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
14.5 "London Stock Exchange" means London Stock Exchange plc;
14.6 "Model Code" means the model code on directors' dealings in
securities set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full
name, address and occupation. Please return the copy to me at the above
address.
Yours sincerely
/s/ Howard S. Frank
Howard S. Frank
Vice Chairman Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Richard G. Capen, Jr.
/s/ Richard G. Capen, Jr..
in the presence of
/s/ A. Perez Witness Signature
Arnaldo Perez Full Name
10220 SW 58CT Address
Miami, FL
Lawyer Occupation
Exhibit 10.7
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 17th day of April, 2003,
between Carnival Corporation, a Panamanian corporation (the "Company"),
and Richard G. Capen, Jr. (the "Director").
The Company, in order to induce the Director to serve on the
Company's board of directors, wishes to indemnify the Director against
certain expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director (or the Director's heirs, executors
or administrators) is made a party or is threatened to be made a party to
or witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director of the Company or P&O
Princess Cruises plc, a public limited company incorporated in England and
Wales, the Company shall (i) indemnify the Director against all expenses
of any kind whatsoever (including attorneys' fees and expenses to enforce
this agreement) actually and reasonably incurred by the Director in
connection with such action, suit or proceeding and against judgments,
fines and amounts paid in settlement in connection with such action, suit
or proceeding and (ii) pay or advance to such indemnitee in advance of
final disposition of such action, suit or proceeding, within 20 days of
the submission of an invoice therefore, all such expenses incurred in
connection therewith, in each case of (i) and (ii) to the fullest extent
and in the manner set forth in and permitted by the General Corporation
Law of the Republic of Panama and any other applicable law, as from time
to time in effect. Such right of indemnification and advancement of
expenses shall not be deemed exclusive of any other rights to which the
Director may be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by a duly authorized officer, as of
the date first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank,
Howard S. Frank, Vice Chairman
and Chief Operating Officer
By: /s/ Richard G. Capen, Jr.
Richard G. Capen, Jr.
Exhibit 10.8
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Mr. Robert H. Dickinson
Carnival Cruise Lines
3655 NW 87th Avenue
Miami, FL 33178-2428
Dear Bob,
I am pleased to confirm your appointment (the "Appointment") as a director
of P&O Princess Cruises plc (to be renamed Carnival plc (the "Company")).
The terms of the Appointment are set forth below and is conditioned upon
the Company's board of directors (the "Board") having passed the
resolutions necessary to give effect to the Appointment, the completion of
the DLC transaction with Carnival Corporation ("Carnival') and your
signing this appointment letter.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles regarding
appointment, expenses, retirement, disqualification and removal of
directors of the Company and will terminate forthwith without any
entitlement to compensation if:
1.1.1 you are not re-elected at an Annual General Meeting of the
Company at which you retire and offer yourself for re-election
in accordance with the Articles; or
1.1.2 you are required to vacate office for any reason pursuant to
any of the provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to vacate
office under any applicable law.
1.2 You will at the request of the Company or Carnival immediately resign
(in writing) from the office of director of the Company and any other
office with a Group company and you irrevocably authorise the Company or
Carnival as your attorney in your name and on your behalf to sign all
documents and do all things necessary to give effect to this.
1.3 On termination of the Appointment, you will (a) cease to be a director
of Carnival, in accordance with the articles of incorporation and by-laws
of Carnival and (b) surrender to an authorised representative of the
Company or Carnival all correspondence, documents (including without
limitation board minutes and board papers), copies thereof or other
property of the Company and of any member of the Group made or received by
you in the course of your directorship (whether before or after the date
of this letter).
1.4 You hereby agree that on termination you shall not be entitled to and
shall not pursue any action or claim for compensation from the Company.
2. Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed to by the Board (the "Duties"). You will have all the
usual Duties of a director under English law and will be expected to
devote such time as is necessary for the proper performance of the Duties.
In carrying out the Duties you shall have particular regard to your role
as a director in the light of the Listing Rules and the Combined Code and
its policy for the time being relating to compliance with the requirements
of the Combined Code as well as such US equivalents, if applicable.
2.2 During the continuance of the Appointment you will be expected to
comply where relevant with any rule of law or regulation of any competent
authority or of the Company including the Model Code published by the
London Stock Exchange in relation to dealings in shares, debentures and
other securities of the Company and unpublished price sensitive
information affecting the shares, debentures or other securities of the
Company, as from time-to-time in force.
2.3 The Company acknowledges that the Appointment comprises part of your
duties pursuant to your office as director of Carnival. You shall carry
out the Duties as part of your duties to Carnival and you will not receive
any additional remuneration from the Company in respect of the Duties or
the Appointment. The Company further acknowledges that you are expected
to continue to carry out your existing duties to Carnival and that your
office as a director of Carnival will continue to be regulated by any
agreement between you and Carnival and will be subject to Carnival's
articles of incorporation and by-laws.
2.4 The Company will reimburse to you reasonable expenses incurred by you
in the proper performance of the Duties. The Company may request receipts
or other evidence of expenditure prior to any reimbursement pursuant to
this clause 2.4. The reimbursement arrangements are subject to change as
determined by the Board from time to time.
3. Confidential Information
3.1 You agree that, neither during the continuance of the Appointment nor
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), will you use for your own or another's benefit or
disclose or permit the disclosure of any confidential information of any
member of the Group which you have obtained by virtue of the Appointment
or your employment by Carnival or in respect of which the Company is bound
by an obligation of confidence to a third party. Confidential information
shall include, without limitation, lists or details of customers,
information relating to the working of any product, process, invention,
improvement or development carried on or used by any member of the Group,
information relating to research projects, know-how, prices, discounts,
mark-ups, future business strategy, marketing, tenders, any price
sensitive information and information concerning the Company's
intellectual property portfolio and strategy.
3.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use
will be subject to any restrictive covenants to which you are a party.
4. Indemnity
In the event that you are made a party or are threatened to be made a
party to or witness in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that you are or were a director of the Company, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including legal fees and expenses to enforce this indemnity)
actually and reasonably incurred by you in connection with such action,
suit or proceeding and against judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding and (ii) pay
or advance to you in advance of final disposition of such action, suit or
proceeding, within 20 days of the submission of an invoice therefore, all
such expenses incurred in connection therewith, in each case of (i) and
(ii) to the fullest extent permitted by the Companies Act 1985 as amended
and any other applicable law or regulation, as from time to time in
effect. Such right of indemnification and advancement of expenses shall
be without prejudice to any other rights to which you may be entitled.
5. Insurance
To the extent possible, the Company will use its reasonable endeavours to
maintain, directly or through Carnival, appropriate directors' and
officers' liability insurance for your benefit.
6. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct
and ethics in substantially the same form as that which applies to
Carnival and its subsidiaries. You agree to observe the provisions of any
such code of business conduct and ethics.
7. Restrictive Covenants
It is a condition of the Appointment that you agree as follows:
if the Appointment shall be terminated at any time, for any reason, you
will not at any time within 12 months after such expiration or
termination, without the prior written approval of the Chairman or Vice-
Chairman of the Company, directly or indirectly:
(a) engage in any business activity directly or indirectly
competitive
with the business of the Company, Carnival or any of their
subsidiaries or affiliates; or
(b) serve as an officer, director, owner, consultant or employee of
any organization then in competition with the Company, Carnival
or any of their subsidiaries or affiliates.
8. Miscellaneous
8.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
8.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject to the
exclusive jurisdiction of the English courts.
9. Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
10. Definitions
In this letter:
10.1 "Articles" means the articles of association from time to time of the
Company;
10.2 "Combined Code" means the principles of good governance and code of
best practice prepared by the Committee on Corporate Governance which is
appended to the Listing Rules;
10.3 "Group" means the Company and any subsidiary or subsidiary
undertaking of the Company (both as defined in the Companies Act 1985, as
amended);
10.4 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
10.5 "London Stock Exchange" means London Stock Exchange plc;
10.6 "Model Code" means the model code on directors' dealings in
securities set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full
name, address and occupation. Please return the copy to me at the above
address.
Yours sincerely
/s/ Howard S. Frank
Howard S. Frank
Vice Chairman Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Robert H. Dickinson
/s/ Robert H. Dickinson
in the presence of
/s/ Janet L. Simpkins Witness Signature
Janet L. Simpkins Full Name
3655 NW 87th Ave Address
Miami, FL 33178
Exec Assistant Occupation
Exhibit 10.9
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 17th day of April, 2003,
between Carnival Corporation, a Panamanian corporation (the "Company"),
and Robert H. Dickinson (the "Director").
The Company, in order to induce the Director to serve on the
Company's board of directors, wishes to indemnify the Director against
certain expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director (or the Director's heirs, executors
or administrators) is made a party or is threatened to be made a party to
or witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director of the Company or P&O
Princess Cruises plc, a public limited company incorporated in England and
Wales, the Company shall (i) indemnify the Director against all expenses
of any kind whatsoever (including attorneys' fees and expenses to enforce
this agreement) actually and reasonably incurred by the Director in
connection with such action, suit or proceeding and against judgments,
fines and amounts paid in settlement in connection with such action, suit
or proceeding and (ii) pay or advance to such indemnitee in advance of
final disposition of such action, suit or proceeding, within 20 days of
the submission of an invoice therefore, all such expenses incurred in
connection therewith, in each case of (i) and (ii) to the fullest extent
and in the manner set forth in and permitted by the General Corporation
Law of the Republic of Panama and any other applicable law, as from time
to time in effect. Such right of indemnification and advancement of
expenses shall not be deemed exclusive of any other rights to which the
Director may be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by a duly authorized officer, as of
the date first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Howard S. Frank, Vice Chairman
and Chief Operating Officer
By: /s/ Robert H. Dickinson
Robert H. Dickinson
Exhibit 10.10
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Mr. Arnold W. Donald
Merisant Company
1 North Brentwood Boulevard, Suite 510
Clayton, MO 63105
Dear Arnold,
I am pleased to confirm your appointment (the "Appointment") as a director
of P&O Princess Cruises plc (to be renamed Carnival plc (the "Company")).
The terms of the Appointment are set forth below and is conditioned upon
the Company's board of directors (the "Board") having passed the
resolutions necessary to give effect to the Appointment, the completion of
the DLC transaction with Carnival Corporation ("Carnival") and your
signing this appointment letter. It is agreed that this is a contract for
services and is not a contract of employment.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles regarding
appointment, expenses, retirement, disqualification and removal of
directors of the Company and will terminate forthwith without any
entitlement to compensation if:
1.1.1 you are not re-elected at an Annual General Meeting of the
Company at which you retire and offer yourself for re-election
in accordance with the Articles; or
1.1.2 you are required to vacate office for any reason pursuant to
any of the provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to vacate
office under any applicable law.
1.2 You will at the request of the Company or Carnival immediately resign
(in writing) from the office of director of the Company and any other
office with a Group company and you irrevocably authorise the Company or
Carnival as your attorney in your name and on your behalf to sign all
documents and do all things necessary to give effect to this.
1.3 On termination of the Appointment, you will (a) cease to be a director
of Carnival, in accordance with the articles of incorporation and by-laws
of Carnival and (b) surrender to an authorised representative of the
Company or Carnival all correspondence, documents (including without
limitation board minutes and board papers), copies thereof or other
property of the Company and of any member of the Group made or received
by you in the course of your directorship (whether before or after the
date of this letter).
1.4 You hereby agree that on termination you shall not be entitled to and
shall not pursue any action or claim for compensation from the Company.
2. Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed by the Board (the "Duties"). You will have all the usual
Duties of a director under English law and will be expected to devote such
time as is necessary for the proper performance of the Duties including
attendance wherever practicable at regular and emergency Board meetings,
meetings of committees of the Board to which you are appointed, the annual
general meeting of the Company and any extraordinary general meeting of
the Company. In addition, you will be expected to devote appropriate
preparation time ahead of each meeting.
2.2 By accepting this Appointment, you have confirmed that you are able to
allocate sufficient time to meet the expectations of your role.
2.3 In carrying out the Duties you shall have particular regard to your
role as a director in the light of the Listing Rules and the Combined Code
and its policy for the time being relating to compliance with the
requirements of the Combined Code as well as such US equivalents, if
applicable.
2.4 During the continuance of the Appointment you will be expected to
comply where relevant with any rule of law or regulation of any competent
authority or of the Company including the Model Code published by the
London Stock Exchange in relation to dealings in shares, debentures and
other securities of the Company and unpublished price sensitive
information affecting the shares, debentures or other securities of the
Company from time-to-time in force.
2.5 You will not receive any remuneration from the Company in respect of
the Duties or the Appointment. The Company further acknowledges that you
are expected to continue to carry out your existing duties to Carnival and
that your office as a director of Carnival will continue to be regulated
by any agreement between you and Carnival and will be subject to
Carnival's articles of incorporation and by-laws.
2.6 The Company will reimburse to you reasonable expenses incurred by you
in the proper performance of the Duties. The Company may request receipts
or other evidence of expenditure prior to any reimbursement pursuant to
this clause 2.6. The reimbursement arrangements are subject to change as
determined by the Board from time to time.
3. Role
3.1 Non-executive directors have the same general legal responsibilities
to the Company as any other director. The Board as a whole is
collectively responsible for promoting the success of the company by
directing and supervising the Company's affairs. The Board:
3.1.1 Provides entrepreneurial leadership of the Company within a
framework of prudent and effective controls which enable risk
to be assessed and managed;
3.1.2 Sets the Company's strategic aims, ensures that the necessary
financial and human resources are in place for the company to
meet its objectives, and reviews management performance; and
3.1.3 Sets the Company's values and standards and ensures that its
obligations to its shareholders and others are understood and
met.
3.2 In addition to these requirements of all directors, the role of the
non-executive has the following key elements:
3.2.1 Strategy: Non-executive directors should constructively
challenge and contribute to the development of strategy;
3.2.2 Performance: Non-executive directors should scrutinize the
performance of management in meeting agreed goals and
objectives and monitor the report of performance;
3.2.3 Risk: Non-executive directors should satisfy themselves that
financial information is accurate and that financial controls
and systems of risk management are robust and defensible; and
3.2.4 People: Non-executive directors are responsible for
determining appropriate levels of remuneration of executive
directors and have a prime role in appointing, and where necessary
removing,senior-management and in succession planning.
4. Outside Interests
It is accepted and acknowledged that you have business interests other
than those of the Company and have declared any conflicts that are
apparent at present. In the event that you become aware of any potential
conflicts of interest, these should be disclosed to the Chairman and
Company Secretary as soon as apparent. You must consult with the Chairman
or Vice-Chairman before accepting any major external appointment or any
directorships in any publicly-quoted companies.
5. Confidential Information
5.1 You agree that, neither during the continuance of the Appointment nor
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), will you use for your own or another's benefit or
disclose or permit the disclosure of any confidential information of any
member of the Group which you have obtained by virtue of the Appointment
or your employment by Carnival or in respect of which the Company is bound
by an obligation of confidence to a third party. Confidential information
shall include, without limitation, lists or details of customers,
information relating to the working of any product, process, invention,
improvement or development carried on or used by any member of the Group,
information relating to research projects, know-how, prices, discounts,
mark-ups, future business strategy, marketing, tenders, any price
sensitive information and information concerning the Company's
intellectual property portfolio and strategy.
5.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use
will be subject to any restrictive covenants to which you are a party.
6. Induction
After your Appointment, the Company will provide a comprehensive, formal
and tailored induction. The Company, upon your request, will arrange for
site visits and meetings with senior and middle management and the
Company's auditors.
7. Review Process
The performance of individual directors and the whole board and its
committees is evaluated annually. If, in the interim, there are any
matters which cause you concern about your role you should discuss them
with the Chairman as soon as is appropriate.
8. Indemnity
In the event that you are made a party or are threatened to be made a
party to or witness in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that you are or were a director of the Company, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including legal fees and expenses to enforce this indemnity)
actually and reasonably incurred by you in connection with such action,
suit or proceeding and against judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding and (ii) pay
or advance to you in advance of final disposition of such action, suit or
proceeding, within 20 days of the submission of an invoice therefore, all
such expenses incurred in connection therewith, in each case of (i) and
(ii) to the fullest extent permitted by the Companies Act 1985 as amended
and any other applicable law or regulation, as from time to time in
effect. Such right of indemnification and advancement of expenses shall
be without prejudice to any other rights to which you may be entitled.
9. Insurance
To the extent possible, the Company will use its reasonable endeavours to
maintain, directly or through Carnival, appropriate directors' and
officers' liability insurance for your benefit. A copy of the current
policy will be provided at induction.
10. Independent Professional Advice
Occasions may arise when you consider that you need professional advice in
the furtherance of your duties as a director. Circumstances may occur
when it will be appropriate for you to seek advice from independent
advisors at the Company's expense. If it is practicable to do so, you
shall seek such advice after consultation with the chairman or vice-
chairman. The Company shall reimburse the full cost of all reasonable
expenditure incurred in obtaining such advice.
11. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct
and ethics in substantially the same form as that which applies to
Carnival and its subsidiaries. You agree to observe the provisions of any
such code of business conduct and ethics.
12. Miscellaneous
12.1 Nothing in this letter shall create the relationship of employee
and employer between you and the Company.
12.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject
to the exclusive jurisdiction of the English courts.
13. Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
14. Definitions
In this letter:
14.1 "Articles" means the articles of association from time to time of the
Company;
14.2 "Combined Code" means the principles of good governance and code of
best practice prepared by the Committee on Corporate Governance which is
appended to the Listing Rules;
14.3 "Group" means the Company and any subsidiary or subsidiary
undertaking of the Company (both as defined in the Companies Act 1985, as
amended);
14.4 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
14.5 "London Stock Exchange" means London Stock Exchange plc;
14.6 "Model Code" means the model code on directors' dealings in
securities set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full
name, address and occupation. Please return the copy to me at the above
address.
Yours sincerely
/s/ Howard S Frank
Howard S. Frank
Vice Chairman Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Arnold W. Donald
/s/ Arnold W. Donald
in the presence of
/s/ A. Perez Witness Signature
Arnaldo Perez Full Name
10220 SW 58CT Address
Miami, FL
Lawyer Occupation
Exhibit 10.11
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 17th day of April, 2003,
between Carnival Corporation, a Panamanian corporation (the "Company"),
and Arnold W. Donald (the "Director").
The Company, in order to induce the Director to serve on the Company's
board of directors, wishes to indemnify the Director against certain
expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director (or the Director's heirs, executors or
administrators) is made a party or is threatened to be made a party to or
witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director of the Company or P&O
Princess Cruises plc, a public limited company incorporated in England and
Wales, the Company shall (i) indemnify the Director against all expenses
(including attorneys' fees and expenses to enforce this agreement),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding and
(ii) pay or advance to such indemnitee in advance of final disposition of
such action, suit or proceeding, within 20 days of the submission of an
invoice therefore, all such expenses incurred in connection therewith, in
each case of (i) and (ii) to the fullest extent and in the manner set
forth in and permitted by the General Corporation Law of the Republic of
Panama and any other applicable law, as from time to time in effect. Such
right of indemnification and advancement of expenses shall not be deemed
exclusive of any other rights to which the Director may be entitled apart
from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed by a duly authorized officer, as of the date
first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Howard S. Frank, Vice Chairman
and Chief Operating Officer
By: /s/ Arnold W. Donald
Arnold W. Donald
Exhibit 10.12
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Mr. Pier Luigi Foschi
President and Chief Executive Officer
Costa Crociere S.p.A.
Via XII Ottobre, 2
16121 Genoa
Italy
Dear Pier,
I am pleased to confirm your appointment (the "Appointment") as a director
of P&O Princess Cruises plc (to be renamed Carnival plc (the "Company")).
The terms of the Appointment are set forth below and is conditioned upon
the Company's board of directors (the "Board") having passed the
resolutions necessary to give effect to the Appointment, the completion of
the DLC transaction with Carnival Corporation ("Carnival') and your
signing this appointment letter.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles regarding
appointment, expenses, retirement, disqualification and removal of
directors of the Company and will terminate forthwith without any
entitlement to compensation if:
1.1.1 you are not re-elected at an Annual General Meeting of the
Company at which you retire and offer yourself for re-election
in accordance with the Articles; or
1.1.2 you are required to vacate office for any reason pursuant to
any of the provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to vacate
office under any applicable law.
1.2 You will at the request of the Company or Carnival immediately resign
(in writing) from the office of director of the Company and any other
office with a Group company and you irrevocably authorise the Company or
Carnival as your attorney in your name and on your behalf to sign all
documents and do all things necessary to give effect to this.
1.3 On termination of the Appointment, you will (a) cease to be a director
of Carnival, in accordance with the articles of incorporation and by-laws
of Carnival and (b) surrender to an authorised representative of the
Company or Carnival all correspondence, documents (including without
limitation board minutes and board papers), copies thereof or other
property of the Company and of any member of the Group made or received by
you in the course of your directorship (whether before or after the date
of this letter).
1.4 You hereby agree that on termination you shall not be entitled to and
shall not pursue any action or claim for compensation from the Company.
2. Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed to by the Board (the "Duties"). You will have all the
usual Duties of a director under English law and will be expected to
devote such time as is necessary for the proper performance of the Duties.
In carrying out the Duties you shall have particular regard to your role
as a director in the light of the Listing Rules and the Combined Code and
its policy for the time being relating to compliance with the requirements
of the Combined Code as well as such US equivalents, if applicable.
2.2 During the continuance of the Appointment you will be expected to
comply where relevant with any rule of law or regulation of any competent
authority or of the Company including the Model Code published by the
London Stock Exchange in relation to dealings in shares, debentures and
other securities of the Company and unpublished price sensitive
information affecting the shares, debentures or other securities of the
Company, as from time-to-time in force.
2.3 The Company acknowledges that the Appointment comprises part of your
duties pursuant to your office as director of Carnival. You shall carry
out the Duties as part of your duties to Carnival and you will not receive
any additional remuneration from the Company in respect of the Duties or
the Appointment. The Company further acknowledges that you are expected
to continue to carry out your existing duties to Carnival and that your
office as a director of Carnival will continue to be regulated by any
agreement between you and Carnival and will be subject to Carnival's
articles of incorporation and by-laws.
2.4 The Company will reimburse to you reasonable expenses incurred by you
in the proper performance of the Duties. The Company may request receipts
or other evidence of expenditure prior to any reimbursement pursuant to
this clause 2.4. The reimbursement arrangements are subject to change as
determined by the Board from time to time.
3. Confidential Information
3.1 You agree that, neither during the continuance of the Appointment nor
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), will you use for your own or another's benefit or
disclose or permit the disclosure of any confidential information of any
member of the Group which you have obtained by virtue of the Appointment
or your employment by Carnival or in respect of which the Company is bound
by an obligation of confidence to a third party. Confidential information
shall include, without limitation, lists or details of customers,
information relating to the working of any product, process, invention,
improvement or development carried on or used by any member of the Group,
information relating to research projects, know-how, prices, discounts,
mark-ups, future business strategy, marketing, tenders, any price
sensitive information and information concerning the Company's
intellectual property portfolio and strategy.
3.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use
will be subject to any restrictive covenants to which you are a party.
4. Indemnity
In the event that you are made a party or are threatened to be made a
party to or witness in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that you are or were a director of the Company, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including legal fees and expenses to enforce this indemnity)
actually and reasonably incurred by you in connection with such action,
suit or proceeding and against judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding and (ii) pay
or advance to you in advance of final disposition of such action, suit or
proceeding, within 20 days of the submission of an invoice therefore, all
such expenses incurred in connection therewith, in each case of (i) and
(ii) to the fullest extent permitted by the Companies Act 1985 as amended
and any other applicable law or regulation, as from time to time in
effect. Such right of indemnification and advancement of expenses shall
be without prejudice to any other rights to which you may be entitled.
5. Insurance
To the extent possible, the Company will use its reasonable endeavours to
maintain, directly or through Carnival, appropriate directors' and
officers' liability insurance for your benefit.
6. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct
and ethics in substantially the same form as that which applies to
Carnival and its subsidiaries. You agree to observe the provisions of any
such code of business conduct and ethics.
7. Restrictive Covenants
It is a condition of the Appointment that you agree as follows:
if the Appointment shall be terminated at any time, for any reason,
you will not at any time within 12 months after such expiration or
termination, without the prior written approval of the Chairman or Vice-
Chairman of the Company, directly or indirectly:
(a) engage in any business activity directly or indirectly
competitive with the business of the Company, Carnival or any of
their subsidiaries or affiliates; or
(b) serve as an officer, director, owner, consultant or employee of
any organization then in competition with the Company, Carnival
or any of their subsidiaries or affiliates.
8. Miscellaneous
8.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
8.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject to the
exclusive jurisdiction of the English courts.
9. Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
10. Definitions
In this letter:
1.1 "Articles" means the articles of association from time to time of the
Company;
10.2 "Combined Code" means the principles of good governance and code of
best practice prepared by the Committee on Corporate Governance which is
appended to the Listing Rules;
10.3 "Group" means the Company and any subsidiary or subsidiary
undertaking of the Company (both as defined in the Companies Act 1985, as
amended);
10.4 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
10.5 "London Stock Exchange" means London Stock Exchange plc;
10.6 "Model Code" means the model code on directors' dealings in
securities set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full
name, address and occupation. Please return the copy to me at the above
address.
Yours sincerely
/s/ Howard S. Frank
Howard S. Frank
Vice Chairman Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Pier Luigi Foschi
/s/ Pier Luigi Foschi
in the presence of
/s/ Enrique Miguez Witness Signature
Enrique Miguez Full Name
3655 NW 87th Ave. Address
Miami, FL 33178
Assistant General Counsel Occupation
Exhibit 10.13
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 17th day of April,
2003, between Carnival Corporation, a Panamanian corporation (the
"Company"), and Pier Luigi Foschi (the "Director").
The Company, in order to induce the Director to serve on the
Company's board of directors, wishes to indemnify the Director against
certain expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director (or the Director's heirs, executors or
administrators) is made a party or is threatened to be made a party to or
witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director of the Company or P&O
Princess Cruises plc, a public limited company incorporated in England and
Wales, the Company shall (i) indemnify the Director against all expenses
of any kind whatsoever (including attorneys' fees and expenses to enforce
this agreement) actually and reasonably incurred by the Director in
connection with such action, suit or proceeding and against judgments,
fines and amounts paid in settlement in connection with such action, suit
or proceeding and (ii) pay or advance to such indemnitee in advance of
final disposition of such action, suit or proceeding, within 20 days of
the submission of an invoice therefore, all such expenses incurred in
connection therewith, in each case of (i) and (ii) to the fullest extent
and in the manner set forth in and permitted by the General Corporation
Law of the Republic of Panama and any other applicable law, as from time
to time in effect. Such right of indemnification and advancement of
expenses shall not be deemed exclusive of any other rights to which the
Director may be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by a duly authorized officer, as of
the date first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Howard S. Frank, Vice Chairman
and Chief Operating Officer
By: /s/ Pier Luigi Foschi
Pier Luigi Foschi
Exhibit 10.14
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Mr. Howard S. Frank
Carnival Corporation
3655 NW 87th Avenue
Miami, FL 33178-2428
Dear Howard,
I am pleased to confirm your appointment (the "Appointment") as a director
of P&O Princess Cruises plc (to be renamed Carnival plc (the "Company")).
The terms of the Appointment are set forth below and is conditioned upon
the Company's board of directors (the "Board") having passed the
resolutions necessary to give effect to the Appointment, the completion of
the DLC transaction with Carnival Corporation ("Carnival') and your
signing this appointment letter.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles regarding
appointment, expenses, retirement, disqualification and removal of
directors of the Company and will terminate forthwith without any
entitlement to compensation if:
1.1.1 you are not re-elected at an Annual General Meeting of the
Company at which you retire and offer yourself for re-election
in accordance with the Articles; or
1.1.2 you are required to vacate office for any reason pursuant to
any of the provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to vacate
office under any applicable law.
1.2 You will at the request of the Company or Carnival immediately resign
(in writing) from the office of director of the Company and any other
office with a Group company and you irrevocably authorise the Company or
Carnival as your attorney in your name and on your behalf to sign all
documents and do all things necessary to give effect to this.
1.3 On termination of the Appointment, you will (a) cease to be a director
of Carnival, in accordance with the articles of incorporation and by-laws
of Carnival and (b) surrender to an authorised representative of the
Company or Carnival all correspondence, documents (including without
limitation board minutes and board papers), copies thereof or other
property of the Company and of any member of the Group made or received by
you in the course of your directorship (whether before or after the date
of this letter).
1.4 You hereby agree that on termination you shall not be entitled to and
shall not pursue any action or claim for compensation from the Company.
2. Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed to by the Board (the "Duties"). You will have all the
usual Duties of a director under English law and will be expected to
devote such time as is necessary for the proper performance of the Duties.
In carrying out the Duties you shall have particular regard to your role
as a director in the light of the Listing Rules and the Combined Code and
its policy for the time being relating to compliance with the requirements
of the Combined Code as well as such US equivalents, if applicable.
2.2 During the continuance of the Appointment you will be expected to
comply where relevant with any rule of law or regulation of any competent
authority or of the Company including the Model Code published by the
London Stock Exchange in relation to dealings in shares, debentures and
other securities of the Company and unpublished price sensitive
information affecting the shares, debentures or other securities of the
Company, as from time-to-time in force.
2.3 The Company acknowledges that the Appointment comprises part of your
duties pursuant to your office as director of Carnival. You shall carry
out the Duties as part of your duties to Carnival and you will not receive
any additional remuneration from the Company in respect of the Duties or
the Appointment. The Company further acknowledges that you are expected
to continue to carry out your existing duties to Carnival and that your
office as a director of Carnival will continue to be regulated by any
agreement between you and Carnival and will be subject to Carnival's
articles of incorporation and by-laws.
2.4 The Company will reimburse to you reasonable expenses incurred by you
in the proper performance of the Duties. The Company may request receipts
or other evidence of expenditure prior to any reimbursement pursuant to
this clause 2.4. The reimbursement arrangements are subject to change as
determined by the Board from time to time.
3. Confidential Information
3.1 You agree that, neither during the continuance of the Appointment nor
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), will you use for your own or another's benefit or
disclose or permit the disclosure of any confidential information of any
member of the Group which you have obtained by virtue of the Appointment
or your employment by Carnival or in respect of which the Company is bound
by an obligation of confidence to a third party. Confidential information
shall include, without limitation, lists or details of customers,
information relating to the working of any product, process, invention,
improvement or development carried on or used by any member of the Group,
information relating to research projects, know-how, prices, discounts,
mark-ups, future business strategy, marketing, tenders, any price
sensitive information and information concerning the Company's
intellectual property portfolio and strategy.
3.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use
will be subject to any restrictive covenants to which you are a party.
4. Indemnity
In the event that you are made a party or are threatened to be made a
party to or witness in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that you are or were a director of the Company, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including legal fees and expenses to enforce this indemnity)
actually and reasonably incurred by you in connection with such action,
suit or proceeding and against judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding and (ii) pay
or advance to you in advance of final disposition of such action, suit or
proceeding, within 20 days of the submission of an invoice therefore, all
such expenses incurred in connection therewith, in each case of (i) and
(ii) to the fullest extent permitted by the Companies Act 1985 as amended
and any other applicable law or regulation, as from time to time in
effect. Such right of indemnification and advancement of expenses shall
be without prejudice to any other rights to which you may be entitled.
5. Insurance
To the extent possible, the Company will use its reasonable endeavours to
maintain, directly or through Carnival, appropriate directors' and
officers' liability insurance for your benefit.
6. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct
and ethics in substantially the same form as that which applies to
Carnival and its subsidiaries. You agree to observe the provisions of any
such code of business conduct and ethics.
7. Restrictive Covenants
It is a condition of the Appointment that you agree as follows:
if the Appointment shall be terminated at any time, for any reason,
you will not at any time within 12 months after such expiration or
termination, without the prior written approval of the Chairman or Vice-
Chairman of the Company, directly or indirectly:
(a) engage in any business activity directly or indirectly
competitive with the business of the Company, Carnival or
any of their subsidiaries or affiliates; or
(b) serve as an officer, director, owner, consultant or employee of
any organization then in competition with the Company, Carnival
or any of their subsidiaries or affiliates.
8. Miscellaneous
8.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
8.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject to the
exclusive jurisdiction of the English courts.
9. Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
10. Definitions
In this letter:
10.1 "Articles" means the articles of association from time to time of the
Company;
10.2 "Combined Code" means the principles of good governance and code of
best practice prepared by the Committee on Corporate Governance which is
appended to the Listing Rules;
10.3 "Group" means the Company and any subsidiary or subsidiary
undertaking of the Company (both as defined in the Companies Act 1985, as
amended);
10.4 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
10.5 "London Stock Exchange" means London Stock Exchange plc;
10.6 "Model Code" means the model code on directors' dealings in
securities set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full
name, address and occupation. Please return the copy to me at the above
address.
Yours sincerely
/s/Micky Arison
Micky Arison
Chairman Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Howard S. Frank
/s/ Howard S. Frank
in the presence of
/s/ Irma M. Tharp Witness Signature
Irma M. Tharp Full Name
9525 SW 165th Terr.. Address
Miami, FL 33157
Legal Assistant Occupation
Exhibit 10.15
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 17th day of April,
2003, between Carnival Corporation, a Panamanian corporation (the
"Company"), and Howard S. Frank (the "Director").
The Company, in order to induce the Director to serve on the
Company's board of directors, wishes to indemnify the Director against
certain expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director (or the Director's heirs, executors or
administrators) is made a party or is threatened to be made a party to or
witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director of the Company or P&O
Princess Cruises plc, a public limited company incorporated in England and
Wales, the Company shall (i) indemnify the Director against all expenses
of any kind whatsoever (including attorneys' fees and expenses to enforce
this agreement) actually and reasonably incurred by the Director in
connection with such action, suit or proceeding and against judgments,
fines and amounts paid in settlement in connection with such action, suit
or proceeding and (ii) pay or advance to such indemnitee in advance of
final disposition of such action, suit or proceeding, within 20 days of
the submission of an invoice therefore, all such expenses incurred in
connection therewith, in each case of (i) and (ii) to the fullest extent
and in the manner set forth in and permitted by the General Corporation
Law of the Republic of Panama and any other applicable law, as from time
to time in effect. Such right of indemnification and advancement of
expenses shall not be deemed exclusive of any other rights to which the
Director may be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by a duly authorized officer, as of
the date first above written.
CARNIVAL CORPORATION
By: /s/Arnaldo Perez
Arnaldo Perez, Senior Vice President
and General Counsel
By: /s/ Howard S. Frank
Howard S. Frank
Exhibit 10.16
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Baroness Sarah Hogg
c/o Patricia Lambourn
P&O Princess Cruises plc
11-12 Charles II Street
London SW1Y 4QU
Dear Baroness Hogg,
I am pleased to confirm your appointment (the "Appointment") as a
director of P&O Princess Cruises plc (to be renamed Carnival plc (the
"Company")). The terms of the Appointment are set forth below and is
conditioned upon the Company's board of directors (the "Board") having
passed the resolutions necessary to give effect to the Appointment, the
completion of the DLC transaction with Carnival Corporation ("Carnival")
and your signing this appointment letter. It is agreed that this is a
contract for services and is not a contract of employment.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles regarding
appointment, expenses, retirement, disqualification and removal of
directors of the Company and will terminate forthwith without any
entitlement to compensation if:
1.1.1 you are not re-elected at an Annual General Meeting of the
Company at which you retire and offer yourself for re-election
in accordance with the Articles; or
1.1.2 you are required to vacate office for any reason pursuant to
any of the provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to vacate
office under any applicable law.
1.2 You will at the request of the Company or Carnival immediately resign
(in writing) from the office of director of the Company and any other
office with a Group company and you irrevocably authorise the Company or
Carnival as your attorney in your name and on your behalf to sign all
documents and do all things necessary to give effect to this.
1.3 On termination of the Appointment, you will (a) cease to be a director
of Carnival, in accordance with the articles of incorporation and by-laws
of Carnival and (b) surrender to an authorised representative of the
Company or Carnival all correspondence, documents (including without
limitation board minutes and board papers), copies thereof or other
property of the Company and of any member of the Group made or received by
you in the course of your directorship (whether before or after the date
of this letter).
1.4 You hereby agree that on termination you shall not be entitled to and
shall not pursue any action or claim for compensation from the Company.
2. Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed by the Board (the "Duties"). You will have all the usual
Duties of a director under English law and will be expected to devote such
time as is necessary for the proper performance of the Duties including
attendance wherever practicable at regular and emergency Board meetings,
meetings of committees of the Board to which you are appointed, the annual
general meeting of the Company and any extraordinary general meeting of
the Company. In addition, you will be expected to devote appropriate
preparation time ahead of each meeting.
2.2 By accepting this Appointment, you have confirmed that you are able to
allocate sufficient time to meet the expectations of your role.
2.3 In carrying out the Duties you shall have particular regard to your
role as a director in the light of the Listing Rules and the Combined Code
and its policy for the time being relating to compliance with the
requirements of the Combined Code as well as such US equivalents, if
applicable.
2.4 During the continuance of the Appointment you will be expected to
comply where relevant with any rule of law or regulation of any competent
authority or of the Company including the Model Code published by the
London Stock Exchange in relation to dealings in shares, debentures and
other securities of the Company and unpublished price sensitive
information affecting the shares, debentures or other securities of the
Company from time-to-time in force.
2.5 You will not receive any remuneration from the Company in respect of
the Duties or the Appointment. The Company further acknowledges that you
are expected to continue to carry out your existing duties to Carnival and
that your office as a director of Carnival will continue to be regulated
by any agreement between you and Carnival and will be subject to
Carnival's articles of incorporation and by-laws.
2.6 The Company will reimburse to you reasonable expenses incurred by you
in the proper performance of the Duties. The Company may request receipts
or other evidence of expenditure prior to any reimbursement pursuant to
this clause 2.6. The reimbursement arrangements are subject to change as
determined by the Board from time to time.
3. Role
3.1 Non-executive directors have the same general legal responsibilities
to the Company as any other director. The Board as a whole is
collectively responsible for promoting the success of the company by
directing and supervising the Company's affairs. The Board:
3.1.1 Provides entrepreneurial leadership of the Company within a
framework of prudent and effective controls which enable risk
to be assessed and managed;
3.1.2 Sets the Company's strategic aims, ensures that the necessary
financial and human resources are in place for the company to
meet its objectives, and reviews management performance; and
3.1.3 Sets the Company's values and standards and ensures that its
obligations to its shareholders and others are understood and
met.
3.2 In addition to these requirements of all directors, the role of the
non-executive has the following key elements:
3.2.1 Strategy: Non-executive directors should constructively
challenge and contribute to the development of strategy;
3.2.2 Performance: Non-executive directors should scrutinize the
performance of management in meeting agreed goals and
objectives and monitor the report of performance;
3.2.3 Risk: Non-executive directors should satisfy themselves that
financial information is accurate and that financial controls
and systems of risk management are robust and defensible; and
3.2.4 People: Non-executive directors are responsible for
determining appropriate levels of remuneration of executive
directors and have a prime role in appointing, and where necessary
removing,senior-management and in succession planning.
4. Outside Interests
It is accepted and acknowledged that you have business interests other
than those of the Company and have declared any conflicts that are
apparent at present. In the event that you become aware of any potential
conflicts of interest, these should be disclosed to the Chairman and
Company Secretary as soon as apparent. You must consult with the Chairman
or Vice-Chairman before accepting any major external appointment or any
directorships in any publicly-quoted companies.
5. Confidential Information
5.1 You agree that, neither during the continuance of the Appointment nor
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), will you use for your own or another's benefit or
disclose or permit the disclosure of any confidential information of any
member of the Group which you have obtained by virtue of the Appointment
or your employment by Carnival or in respect of which the Company is bound
by an obligation of confidence to a third party. Confidential information
shall include, without limitation, lists or details of customers,
information relating to the working of any product, process, invention,
improvement or development carried on or used by any member of the Group,
information relating to research projects, know-how, prices, discounts,
mark-ups, future business strategy, marketing, tenders, any price
sensitive information and information concerning the Company's
intellectual property portfolio and strategy.
5.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use
will be subject to any restrictive covenants to which you are a party.
6. Induction
After your Appointment, the Company will provide a comprehensive, formal
and tailored induction. The Company, upon your request, will arrange for
site visits and meetings with senior and middle management and the
Company's auditors.
7. Review Process
The performance of individual directors and the whole board and its
committees is evaluated annually. If, in the interim, there are any
matters which cause you concern about your role you should discuss them
with the Chairman as soon as is appropriate.
8. Indemnity
In the event that you are made a party or are threatened to be made a
party to or witness in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that you are or were a director of the Company, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including legal fees and expenses to enforce this indemnity)
actually and reasonably incurred by you in connection with such action,
suit or proceeding and against judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding and (ii) pay
or advance to you in advance of final disposition of such action, suit or
proceeding, within 20 days of the submission of an invoice therefore, all
such expenses incurred in connection therewith, in each case of (i) and
(ii) to the fullest extent permitted by the Companies Act 1985 as amended
and any other applicable law or regulation, as from time to time in
effect. Such right of indemnification and advancement of expenses shall
be without prejudice to any other rights to which you may be entitled.
9. Insurance
To the extent possible, the Company will use its reasonable endeavours to
maintain, directly or through Carnival, appropriate directors' and
officers' liability insurance for your benefit. A copy of the current
policy will be provided at induction.
10. Independent Professional Advice
Occasions may arise when you consider that you need professional advice in
the furtherance of your duties as a director. Circumstances may occur
when it will be appropriate for you to seek advice from independent
advisors at the Company's expense. If it is practicable to do so, you
shall seek such advice after consultation with the chairman or vice-
chairman. The Company shall reimburse the full cost of all reasonable
expenditure incurred in obtaining such advice.
11. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct
and ethics in substantially the same form as that which applies to
Carnival and its subsidiaries. You agree to observe the provisions of any
such code of business conduct and ethics.
12. Miscellaneous
12.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
12.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject to the
exclusive jurisdiction of the English courts.
13 Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
14. Definitions
In this letter:
14.1 "Articles" means the articles of association from time to time of the
Company;
14.2 "Combined Code" means the principles of good governance and code of
best practice prepared by the Committee on Corporate Governance which is
appended to the Listing Rules;
14.3 "Group" means the Company and any subsidiary or subsidiary
undertaking of the Company (both as defined in the Companies Act 1985, as
amended);
14.4 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
14.5 "London Stock Exchange" means London Stock Exchange plc;
14.6 "Model Code" means the model code on directors' dealings in
securities set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full
name, address and occupation. Please return the copy to me at the above
address.
Yours sincerely
/s/ Howard S. Frank
Howard S. Frank
Vice Chairman - Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Baroness Sarah Hogg
/s/ Sarah Hogg
in the presence of
/s/ A. W. W. Brierley Witness Signature
A. W. W. Brierley Full Name
91 Waterloo Road Address
London SE1 8XP
Solicitor Occupation
Exhibit 10.17
Carnival Corporation
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Baroness Sarah Hogg
c/o Patricia Lambourn
P&O Princess Cruises plc
11-12 Charles II Street
London SW1Y 4QU
Dear Baroness Hogg,
I am pleased to confirm your appointment as a director of the Company
(the "Appointment"). The terms of the Appointment are set forth below and
is conditioned upon the Company's board of directors (the "Board") having
passed the resolutions necessary to give effect to the Appointment, the
completion of the dual listed company transaction and your signing this
appointment letter.
The Appointment is subject to applicable law and the provisions of
the Company's Third Amended and Restated Articles of Incorporation (the
"Articles") and the Amended and Restated Bylaws (the "Bylaws") regarding,
without limitation, the powers vested in the Board, eligibility, term of
appointment, effectiveness of appointment, resignation, removal,
disqualification and compensation of directors of the Company.
1. Term of Appointment
1.1 The Appointment shall terminate without any entitlement to
compensation upon your resignation, removal, disqualification or death as
set forth in the Bylaws.
1.2 Upon the termination of the Appointment, you shall (a) cease to be a
director of Carnival plc, and (b) surrender to an authorized
representative of the Company all correspondence, documents (including
without limitation board minutes and board papers), copies thereof or
other property of the Company, Carnival plc, and all of their subsidiaries
and affiliates (collectively the "Group") made or received by you in the
course of your directorship (whether before or after the date of this
letter).
2. Duties and Fees
2.1 You shall carry out such duties as set forth in the Articles and
Bylaws and as otherwise agreed to by the Board (the "Duties").
2.2 You will be entitled to a fee for your services as a director of
$40,000 per annum. If you serve on a Board committee, you will receive an
additional fee of $2,500 per annum ($5,000 for the audit committee). If
you are required to act as chairman of a Board committee you will be
entitled to an additional fee of $5,000 per annum ($10,000 for the audit
committee). In addition, attendance fees for Board and committee meetings
will also be paid ranging from $1,000 to $5,000 per meeting. For 2003,
you will receive an additional $5,000 for each Board meeting held outside
the UK which you attend in person. A compensation table which sets forth
all such fees is annexed to this letter for your reference. The Company
shall make all such payments to you in the equivalent amount of Pounds
Sterling (as of the time of payment).
2.3 The Company will reimburse to you reasonable expenses incurred in the
performance of the Duties. The Company may request receipts or other
evidence of expenditure prior to any reimbursement pursuant to this clause
2.3.
2.4 The compensation and reimbursement arrangements set forth in clauses
2.2 and 2.3 hereof are subject to change as determined by the Board from
time to time.
3. Confidential Information
3.1 You agree that, during the continuance of the Appointment or
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), you will not use for your own or another's
benefit or disclose or permit the disclosure of any confidential
information of any member of the Group which you have obtained by virtue
of the Appointment or your employment by the Company or in respect of
which the Company is bound by an obligation of confidence to a third
party. Confidential information shall include, without limitation, lists
or details of customers, information relating to the working of any
product, process, invention, improvement or development carried on or used
by any member of the Group, information relating to research projects,
know-how, prices, discounts, mark-ups, future business strategy,
marketing, tenders, any price sensitive information and information
concerning the Company's intellectual property portfolio and strategy.
3.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use
will be subject to any restrictive covenants to which you are a party.
4. Indemnity
In the event that you (or your heirs, executors or administrators) is made
a party or is threatened to be made a party to or witness in any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact
that you are or were a director of the Company or Carnival plc, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including attorneys' fees and expenses to enforce this
indemnity), judgments, fines and amounts paid in settlement actually and
reasonably incurred by you in connection with such action, suit or
proceeding and (ii) pay or advance to you in advance of final disposition
of such action, suit or proceeding, within 20 days of the submission of an
invoice therefore, all such expenses incurred in connection therewith, in
each case of (i) and (ii) to the fullest extent and in the manner set
forth in and permitted by the General Corporation Law of the Republic of
Panama and any other applicable law, as from time to time in effect. Such
right of indemnification and advancement of expenses shall not be deemed
exclusive of any other rights to which you may be entitled apart from the
foregoing provisions.
5. Insurance
To the extent possible, the Company will use its reasonable efforts to
maintain appropriate directors' and officers' liability insurance for your
benefit.
6. Code of Business Conduct and Ethics
You agree to observe the provisions of the Company's code of business
conduct and ethics.
7. Miscellaneous
7.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
7.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, Florida law and shall be subject to the
exclusive jurisdiction of the courts located in Miami-Dade County,
Florida.
7.3 This appointment letter may be executed in one or more counterparts,
each of which will be deemed to be an original copy of this appointment
letter, and all of which, when taken together, shall be deemed to
constitute one and the same agreement.
8. Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
Kindly confirm your agreement to the terms set out above by signing the
enclosed copy of this letter. Please return the copy to me at the above
address.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Name: Howard S. Frank
Title: Vice Chairman
AGREED AND ACCEPTED BY:
/s/ Baroness Sarah Hogg
Baroness Sarah Hogg
ANNEX
Board Audit Committee Other Committees
Member
Chair Member Chair Member
Annual Retainer $40,000 $10,000 $5,000 $5,000 $2,500
Attendance Fee
Attendance Fee
Meeting in Person 5,000 2,500 2,500 2,000 2,000
By Phone 2,000 1,000 1,000 1,000 1,000
Additional Fee for 5,000
meeting outside UK
(applicable for 2003
only)
Exhibit 10.18
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 17th day of April,
2003, between Carnival Corporation, a Panamanian corporation (the
"Company"), and A. Kirk Lanterman (the "Director").
The Company, in order to induce the Director to serve on the
Company's board of directors, wishes to indemnify the Director against
certain expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director (or the Director's heirs, executors or
administrators) is made a party or is threatened to be made a party to or
witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director of the Company or P&O
Princess Cruises plc, a public limited company incorporated in England and
Wales, the Company shall (i) indemnify the Director against all expenses
of any kind whatsoever (including attorneys' fees and expenses to enforce
this agreement) actually and reasonably incurred by the Director in
connection with such action, suit or proceeding and against judgments,
fines and amounts paid in settlement in connection with such action, suit
or proceeding and (ii) pay or advance to such indemnitee in advance of
final disposition of such action, suit or proceeding, within 20 days of
the submission of an invoice therefore, all such expenses incurred in
connection therewith, in each case of (i) and (ii) to the fullest extent
and in the manner set forth in and permitted by the General Corporation
Law of the Republic of Panama and any other applicable law, as from time
to time in effect. Such right of indemnification and advancement of
expenses shall not be deemed exclusive of any other rights to which the
Director may be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by a duly authorized officer, as of
the date first above written.
CARNIVAL CORPORATION
By:
/s/ Howard S. Frank
Howard S. Frank, Vice Chairman
and Chief Operating Officer
By:
/s/ A. Kirk Lanterman
A. Kirk Lanterman
Exhibit 10.19
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Dr. Modesto A. Maidique
Office of the President
Florida International University
107th Avenue & 8th Street
Child Bldg. - PC 528
Miami, FL 33199
Dear Modesto,
I am pleased to confirm your appointment (the "Appointment") as a director
of P&O Princess Cruises plc (to be renamed Carnival plc (the "Company")).
The terms of the Appointment are set forth below and is conditioned upon
the Company's board of directors (the "Board") having passed the
resolutions necessary to give effect to the Appointment, the completion of
the DLC transaction with Carnival Corporation ("Carnival") and your
signing this appointment letter. It is agreed that this is a contract for
services and is not a contract of employment.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles regarding
appointment, expenses, retirement, disqualification and removal of
directors of the Company and will terminate forthwith without any
entitlement to compensation if:
1.1.1 you are not re-elected at an Annual General Meeting of the
Company at which you retire and offer yourself for re-election
in accordance with the Articles; or
1.1.2 you are required to vacate office for any reason pursuant to
any of the provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to vacate
office under any applicable law.
1.2 You will at the request of the Company or Carnival immediately resign
(in writing) from the office of director of the Company and any other
office with a Group company and you irrevocably authorise the Company or
Carnival as your attorney in your name and on your behalf to sign all
documents and do all things necessary to give effect to this.
1.3 On termination of the Appointment, you will (a) cease to be a director
of Carnival, in accordance with the articles of incorporation and by-laws
of Carnival and (b) surrender to an authorised representative of the
Company or Carnival all correspondence, documents (including without
limitation board minutes and board papers), copies thereof or other
property of the Company and of any member of the Group made or received
by you in the course of your directorship (whether before or after the
date of this letter).
1.4 You hereby agree that on termination you shall not be entitled to and
shall not pursue any action or claim for compensation from the Company.
2 Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed by the Board (the "Duties"). You will have all the usual
Duties of a director under English law and will be expected to devote such
time as is necessary for the proper performance of the Duties including
attendance wherever practicable at regular and emergency Board meetings,
meetings of committees of the Board to which you are appointed, the annual
general meeting of the Company and any extraordinary general meeting of
the Company. In addition, you will be expected to devote appropriate
preparation time ahead of each meeting.
2.2 By accepting this Appointment, you have confirmed that you are able to
allocate sufficient time to meet the expectations of your role.
2.3 In carrying out the Duties you shall have particular regard to your
role as a director in the light of the Listing Rules and the Combined Code
and its policy for the time being relating to compliance with the
requirements of the Combined Code as well as such US equivalents, if
applicable.
2.4 During the continuance of the Appointment you will be expected to
comply where relevant with any rule of law or regulation of any competent
authority or of the Company including the Model Code published by the
London Stock Exchange in relation to dealings in shares, debentures and
other securities of the Company and unpublished price sensitive
information affecting the shares, debentures or other securities of the
Company from time-to-time in force.
2.5 You will not receive any remuneration from the Company in respect of
the Duties or the Appointment. The Company further acknowledges that you
are expected to continue to carry out your existing duties to Carnival and
that your office as a director of Carnival will continue to be regulated
by any agreement between you and Carnival and will be subject to
Carnival's articles of incorporation and by-laws.
2.6 The Company will reimburse to you reasonable expenses incurred by you
in the proper performance of the Duties. The Company may request receipts
or other evidence of expenditure prior to any reimbursement pursuant to
this clause 2.6. The reimbursement arrangements are subject to change as
determined by the Board from time to time.
3. Role
3.1 Non-executive directors have the same general legal responsibilities
to the Company as any other director. The Board as a whole is
collectively responsible for promoting the success of the company by
directing and supervising the Company's affairs. The Board:
3.1.1 Provides entrepreneurial leadership of the Company within a
framework of prudent and effective controls which enable risk
to be assessed and managed;
3.1.2 Sets the Company's strategic aims, ensures that the necessary
financial and human resources are in place for the company to
meet its objectives, and reviews management performance; and
3.1.3 Sets the Company's values and standards and ensures that its
obligations to its shareholders and others are understood and
met.
3.2 In addition to these requirements of all directors, the role of the
non-executive has the following key elements:
3.2.1 Strategy: Non-executive directors should constructively
challenge and contribute to the development of strategy;
3.2.2 Performance: Non-executive directors should scrutinize the
performance of management in meeting agreed goals and
objectives and monitor the report of performance;
3.2.3 Risk: Non-executive directors should satisfy themselves that
financial information is accurate and that financial controls
and systems of risk management are robust and defensible; and
3.2.4 People: Non-executive directors are responsible for determining
appropriate levels of remuneration of executive directors and
have a prime role in appointing, and where necessary removing,
senior-management and in succession planning.
4. Outside Interests
It is accepted and acknowledged that you have business interests other
than those of the Company and have declared any conflicts that are
apparent at present. In the event that you become aware of any potential
conflicts of interest, these should be disclosed to the Chairman and
Company Secretary as soon as apparent. You must consult with the Chairman
or Vice-Chairman before accepting any major external appointment or any
directorships in any publicly-quoted companies.
5. Confidential Information
5.1 You agree that, neither during the continuance of the Appointment nor
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), will you use for your own or another's benefit or
disclose or permit the disclosure of any confidential information of any
member of the Group which you have obtained by virtue of the Appointment
or your employment by Carnival or in respect of which the Company is bound
by an obligation of confidence to a third party. Confidential information
shall include, without limitation, lists or details of customers,
information relating to the working of any product, process, invention,
improvement or development carried on or used by any member of the Group,
information relating to research projects, know-how, prices, discounts,
mark-ups, future business strategy, marketing, tenders, any price
sensitive information and information concerning the Company's
intellectual property portfolio and strategy.
5.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use
will be subject to any restrictive covenants to which you are a party.
6. Induction
After your Appointment, the Company will provide a comprehensive, formal
and tailored induction. The Company, upon your request, will arrange for
site visits and meetings with senior and middle management and the
Company's auditors.
7. Review Process
The performance of individual directors and the whole board and its
committees is evaluated annually. If, in the interim, there are any
matters which cause you concern about your role you should discuss them
with the Chairman as soon as is appropriate.
8. Indemnity
In the event that you are made a party or are threatened to be made a
party to or witness in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that you are or were a director of the Company, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including legal fees and expenses to enforce this indemnity)
actually and reasonably incurred by you in connection with such action,
suit or proceeding and against judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding and (ii) pay
or advance to you in advance of final disposition of such action, suit or
proceeding, within 20 days of the submission of an invoice therefore, all
such expenses incurred in connection therewith, in each case of (i) and
(ii) to the fullest extent permitted by the Companies Act 1985 as amended
and any other applicable law or regulation, as from time to time in
effect. Such right of indemnification and advancement of expenses shall
be without prejudice to any other rights to which you may be entitled.
9. Insurance
To the extent possible, the Company will use its reasonable endeavours to
maintain, directly or through Carnival, appropriate directors' and
officers' liability insurance for your benefit. A copy of the current
policy will be provided at induction.
10. Independent Professional Advice
Occasions may arise when you consider that you need professional advice in
the furtherance of your duties as a director. Circumstances may occur
when it will be appropriate for you to seek advice from independent
advisors at the Company's expense. If it is practicable to do so, you
shall seek such advice after consultation with the chairman or vice-
chairman. The Company shall reimburse the full cost of all reasonable
expenditure incurred in obtaining such advice.
11. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct
and ethics in substantially the same form as that which applies to
Carnival and its subsidiaries. You agree to observe the provisions of any
such code of business conduct and ethics.
12. Miscellaneous
12.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
12.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject to the
exclusive jurisdiction of the English courts.
13. Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
14. Definitions
In this letter:
14.1 "Articles" means the articles of association from time to time of the
Company;
14.2 "Combined Code" means the principles of good governance and code of
best practice prepared by the Committee on Corporate Governance which is
appended to the Listing Rules;
14.3 "Group" means the Company and any subsidiary or subsidiary
undertaking of the Company (both as defined in the Companies Act 1985, as
amended);
14.4 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
14.5 "London Stock Exchange" means London Stock Exchange plc;
14.6 "Model Code" means the model code on directors' dealings in
securities set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full
name, address and occupation. Please return the copy to me at the above
address.
Yours sincerely
/s/ Howard S. Frank
Howard S. Frank
Vice Chairman Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Modesto A. Maidique
/s/ Modesto A. Maidique
in the presence of
/s/ Irma M. Tharp Witness Signature
Irma M. Tharp Full Name
9525 SW 165th Terr.. Address
Miami, FL 33157
Legal Assistant Occupation
Exhibit 10.20
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 17th day of April,
2003, between Carnival Corporation, a Panamanian corporation (the
"Company"), and Modesto A. Maidique (the "Director").
The Company, in order to induce the Director to serve on the
Company's board of directors, wishes to indemnify the Director against
certain expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director (or the Director's heirs, executors or
administrators) is made a party or is threatened to be made a party to or
witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director of the Company or P&O
Princess Cruises plc, a public limited company incorporated in England and
Wales, the Company shall (i) indemnify the Director against all expenses
(including attorneys' fees and expenses to enforce this agreement),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding and
(ii) pay or advance to such indemnitee in advance of final disposition of
such action, suit or proceeding, within 20 days of the submission of an
invoice therefore, all such expenses incurred in connection therewith, in
each case of (i) and (ii) to the fullest extent and in the manner set
forth in and permitted by the General Corporation Law of the Republic of
Panama and any other applicable law, as from time to time in effect. Such
right of indemnification and advancement of expenses shall not be deemed
exclusive of any other rights to which the Director may be entitled apart
from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by a duly authorized officer, as of
the date first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Howard S. Frank, Vice Chairman
and Chief Operating Officer
By: /s/ Modesto A. Maidique
Modesto A. Maidique
Exhibit 10.21
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Sir John Parker
Chairman
National Grid Transco
1-3 Strand
London WC2N 5EH, United Kingdom
Dear Sir Parker,
I am pleased to confirm your appointment (the "Appointment") as a director
of P&O Princess Cruises plc (to be renamed Carnival plc (the "Company")).
The terms of the Appointment are set forth below and is conditioned upon
the Company's board of directors (the "Board") having passed the
resolutions necessary to give effect to the Appointment, the completion of
the DLC transaction with Carnival Corporation ("Carnival") and your
signing this appointment letter. It is agreed that this is a contract for
services and is not a contract of employment.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles regarding
appointment, expenses, retirement, disqualification and removal of
directors of the Company and will terminate forthwith without any
entitlement to compensation if:
1.1.1 you are not re-elected at an Annual General Meeting of the
Company at which you retire and offer yourself for re-election
in accordance with the Articles; or
1.1.2 you are required to vacate office for any reason pursuant to
any of the provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to vacate
office under any applicable law.
1.2 You will at the request of the Company or Carnival immediately resign
(in writing) from the office of director of the Company and any other
office with a Group company and you irrevocably authorise the Company or
Carnival as your attorney in your name and on your behalf to sign all
documents and do all things necessary to give effect to this.
1.3 On termination of the Appointment, you will (a) cease to be a director
of Carnival, in accordance with the articles of incorporation and by-laws
of Carnival and (b) surrender to an authorised representative of the
Company or Carnival all correspondence, documents (including without
limitation board minutes and board papers), copies thereof or other
property of the Company and of any member of the Group made or received by
you in the course of your directorship (whether before or after the date
of this letter).
1.4 You hereby agree that on termination you shall not be entitled to and
shall not pursue any action or claim for compensation from the Company.
2. Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed by the Board (the "Duties"). You will have all the usual
Duties of a director under English law and will be expected to devote such
time as is necessary for the proper performance of the Duties including
attendance wherever practicable at regular and emergency Board meetings,
meetings of committees of the Board to which you are appointed, the annual
general meeting of the Company and any extraordinary general meeting of
the Company. In addition, you will be expected to devote appropriate
preparation time ahead of each meeting.
2.2 By accepting this Appointment, you have confirmed that you are able to
allocate sufficient time to meet the expectations of your role.
2.3 In carrying out the Duties you shall have particular regard to your
role as a director in the light of the Listing Rules and the Combined Code
and its policy for the time being relating to compliance with the
requirements of the Combined Code as well as such US equivalents, if
applicable.
2.4 During the continuance of the Appointment you will be expected to
comply where relevant with any rule of law or regulation of any competent
authority or of the Company including the Model Code published by the
London Stock Exchange in relation to dealings in shares, debentures and
other securities of the Company and unpublished price sensitive
information affecting the shares, debentures or other securities of the
Company from time-to-time in force.
2.5 You will not receive any remuneration from the Company in respect of
the Duties or the Appointment. The Company further acknowledges that you
are expected to continue to carry out your existing duties to Carnival and
that your office as a director of Carnival will continue to be regulated
by any agreement between you and Carnival and will be subject to
Carnival's articles of incorporation and by-laws.
2.6 The Company will reimburse to you reasonable expenses incurred by you
in the proper performance of the Duties. The Company may request receipts
or other evidence of expenditure prior to any reimbursement pursuant to
this clause 2.6. The reimbursement arrangements are subject to change as
determined by the Board from time to time.
3. Role
3.1 Non-executive directors have the same general legal responsibilities
to the Company as any other director. The Board as a whole is
collectively responsible for promoting the success of the company by
directing and supervising the Company's affairs. The Board:
3.1.1 Provides entrepreneurial leadership of the Company within a
framework of prudent and effective controls which enable risk
to be assessed and managed;
3.1.2 Sets the Company's strategic aims, ensures that the necessary
financial and human resources are in place for the company to
meet its objectives, and reviews management performance; and
3.1.3 Sets the Company's values and standards and ensures that its
obligations to its shareholders and others are understood and
met.
3.2 In addition to these requirements of all directors, the role of the
non-executive has the following key elements:
3.2.1 Strategy: Non-executive directors should constructively
challenge and contribute to the development of strategy;
3.2.2 Performance: Non-executive directors should scrutinize the
performance of management in meeting agreed goals and
objectives and monitor the report of performance;
3.2.3 Risk: Non-executive directors should satisfy themselves that
financial information is accurate and that financial controls
and systems of risk management are robust and defensible; and
3.2.4 People: Non-executive directors are responsible for
determining appropriate levels of remuneration of executive
directors and have a prime role in appointing, and where necessary
removing, senior-management and in succession planning.
4. Outside Interests
It is accepted and acknowledged that you have business interests other
than those of the Company and have declared any conflicts that are
apparent at present. In the event that you become aware of any potential
conflicts of interest, these should be disclosed to the Chairman and
Company Secretary as soon as apparent. You must consult with the Chairman
or Vice-Chairman before accepting any major external appointment or any
directorships in any publicly-quoted companies.
5. Confidential Information
5.1 You agree that, neither during the continuance of the Appointment nor
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), will you use for your own or another's benefit or
disclose or permit the disclosure of any confidential information of any
member of the Group which you have obtained by virtue of the Appointment
or your employment by Carnival or in respect of which the Company is bound
by an obligation of confidence to a third party. Confidential information
shall include, without limitation, lists or details of customers,
information relating to the working of any product, process, invention,
improvement or development carried on or used by any member of the Group,
information relating to research projects, know-how, prices, discounts,
mark-ups, future business strategy, marketing, tenders, any price
sensitive information and information concerning the Company's
intellectual property portfolio and strategy.
5.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use
will be subject to any restrictive covenants to which you are a party.
6. Induction
After your Appointment, the Company will provide a comprehensive, formal
and tailored induction. The Company, upon your request, will arrange for
site visits and meetings with senior and middle management and the
Company's auditors.
7. Review Process
The performance of individual directors and the whole board and its
committees is evaluated annually. If, in the interim, there are any
matters which cause you concern about your role you should discuss them
with the Chairman as soon as is appropriate.
8. Indemnity
In the event that you are made a party or are threatened to be made a
party to or witness in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that you are or were a director of the Company, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including legal fees and expenses to enforce this indemnity)
actually and reasonably incurred by you in connection with such action,
suit or proceeding and against judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding and (ii) pay
or advance to you in advance of final disposition of such action, suit or
proceeding, within 20 days of the submission of an invoice therefore, all
such expenses incurred in connection therewith, in each case of (i) and
(ii) to the fullest extent permitted by the Companies Act 1985 as amended
and any other applicable law or regulation, as from time to time in
effect. Such right of indemnification and advancement of expenses shall
be without prejudice to any other rights to which you may be entitled.
9. Insurance
To the extent possible, the Company will use its reasonable endeavours to
maintain, directly or through Carnival, appropriate directors' and
officers' liability insurance for your benefit. A copy of the current
policy will be provided at induction.
10. Independent Professional Advice
Occasions may arise when you consider that you need professional advice in
the furtherance of your duties as a director. Circumstances may occur
when it will be appropriate for you to seek advice from independent
advisors at the Company's expense. If it is practicable to do so, you
shall seek such advice after consultation with the chairman or vice-
chairman. The Company shall reimburse the full cost of all reasonable
expenditure incurred in obtaining such advice.
11. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct
and ethics in substantially the same form as that which applies to
Carnival and its subsidiaries. You agree to observe the provisions of any
such code of business conduct and ethics.
12. Miscellaneous
12.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
12.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject to the
exclusive jurisdiction of the English courts.
13. Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
14. Definitions
In this letter:
14.1 "Articles" means the articles of association from time to time of the
Company;
14.2 "Combined Code" means the principles of good governance and code of
best practice prepared by the Committee on Corporate Governance which is
appended to the Listing Rules;
14.3 "Group" means the Company and any subsidiary or subsidiary
undertaking of the Company (both as defined in the Companies Act 1985, as
amended);
14.4 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
14.5 "London Stock Exchange" means London Stock Exchange plc;
14.6 "Model Code" means the model code on directors' dealings in
securities set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full
name, address and occupation. Please return the copy to me at the above
address.
Yours sincerely
/s/ Howard S. Frank
Howard S. Frank
Vice Chairman - Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Sir John Parker
/s/ Sir John Parker
in the presence of
/s/Helen Margaret Macy Witness Signature
Helen Margaret Macy Full Name
Clohe Merle Address
Merle Common
Oxted, Surrey, RH8 ORP
Company Secretary Occupation
Exhibit 10.22
C A R N I V A L
C O R P O R A T I O N
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Sir John Parker
Chairman
National Grid Transco
1-3 Strand
London WC2N
5EH
United Kingdom
Dear Sir Parker,
I am pleased to confirm your appointment as a director of the Company (the
"Appointment"). The terms of the Appointment are set forth below and is
conditioned upon the Company's board of directors (the "Board") having
passed the resolutions necessary to give effect to the Appointment, the
completion of the dual listed company transaction and your signing this
appointment letter.
The Appointment is subject to applicable law and the provisions of the
Company's Third Amended and Restated Articles of Incorporation (the
"Articles") and the Amended and Restated Bylaws (the "Bylaws") regarding,
without limitation, the powers vested in the Board, eligibility, term of
appointment, effectiveness of appointment, resignation, removal,
disqualification and compensation of directors of the Company.
1. Term of Appointment
1.1 The Appointment shall terminate without any entitlement to
compensation upon your resignation, removal, disqualification or death as
set forth in the Bylaws.
1.2 Upon the termination of the Appointment, you shall (a) cease to be a
director of Carnival plc, and (b) surrender to an authorized
representative of the Company all correspondence, documents (including
without limitation board minutes and board papers), copies thereof or
other property of the Company, Carnival plc, and all of their subsidiaries
and affiliates (collectively the "Group") made or received by you in the
course of your directorship (whether before or after the date of this
letter).
2. Duties and Fees
2.1 You shall carry out such duties as set forth in the Articles and
Bylaws and as otherwise agreed to by the Board (the "Duties").
2.2 You will be entitled to a fee for your services as a director of
$40,000 per annum. If you serve on a Board committee, you will receive an
additional fee of $2,500 per annum ($5,000 for the audit committee). If
you are required to act as chairman of a Board committee you will be
entitled to an additional fee of $5,000 per annum ($10,000 for the audit
committee). In addition, attendance fees for Board and committee meetings
will also be paid ranging from $1,000 to $5,000 per meeting. For 2003,
you will receive an additional $5,000 for each Board meeting held outside
the UK which you attend in person. A compensation table which sets forth
all such fees is annexed to this letter for your reference. The Company
shall make all such payments to you in the equivalent amount of Pounds
Sterling (as of the time of payment).
2.3 The Company will reimburse to you reasonable expenses incurred in the
performance of the Duties. The Company may request receipts or other
evidence of expenditure prior to any reimbursement pursuant to this clause
2.3.
2.4 The compensation and reimbursement arrangements set forth in clauses
2.2 and 2.3 hereof are subject to change as determined by the Board from
time to time.
3. Confidential Information
3.1 You agree that, during the continuance of the Appointment or
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), you will not use for your own or another's
benefit or disclose or permit the disclosure of any confidential
information of any member of the Group which you have obtained by virtue
of the Appointment or your employment by the Company or in respect of
which the Company is bound by an obligation of confidence to a third
party. Confidential information shall include, without limitation, lists
or details of customers, information relating to the working of any
product, process, invention, improvement or development carried on or used
by any member of the Group, information relating to research projects,
know-how, prices, discounts, mark-ups, future business strategy,
marketing, tenders, any price sensitive information and information
concerning the Company's intellectual property portfolio and strategy.
3.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use
will be subject to any restrictive covenants to which you are a party.
4. Indemnity
In the event that you (or your heirs, executors or administrators) is made
a party or is threatened to be made a party to or witness in any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact
that you are or were a director of the Company or Carnival plc, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including attorneys' fees and expenses to enforce this
indemnity), judgments, fines and amounts paid in settlement actually and
reasonably incurred by you in connection with such action, suit or
proceeding and (ii) pay or advance to you in advance of final disposition
of such action, suit or proceeding, within 20 days of the submission of an
invoice therefore, all such expenses incurred in connection therewith, in
each case of (i) and (ii) to the fullest extent and in the manner set
forth in and permitted by the General Corporation Law of the Republic of
Panama and any other applicable law, as from time to time in effect. Such
right of indemnification and advancement of expenses shall not be deemed
exclusive of any other rights to which you may be entitled apart from the
foregoing provisions.
5. Insurance
To the extent possible, the Company will use its reasonable efforts to
maintain appropriate directors' and officers' liability insurance for your
benefit.
6. Code of Business Conduct and Ethics
You agree to observe the provisions of the Company's code of business
conduct and ethics.
7. Miscellaneous
7.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
7.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, Florida law and shall be subject to the
exclusive jurisdiction of the courts located in Miami-Dade County,
Florida.
7.3 This appointment letter may be executed in one or more counterparts,
each of which will be deemed to be an original copy of this appointment
letter, and all of which, when taken together, shall be deemed to
constitute one and the same agreement.
8. Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
Kindly confirm your agreement to the terms set out above by signing the
enclosed copy of this letter. Please return the copy to me at the above
address.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Name: Howard S. Frank
Title: Vice Chairman
AGREED AND ACCEPTED BY:
/s/ Sir John Parker
Sir John Parker
ANNEX
Board Audit Committee Other Committees
Member
Chair Member Chair Member
Annual Retainer $40,000 $10,000 $5,000 $5,000 $2,500
Attendance Fee
Attendance Fee
Meeting in Person 5,000 2,500 2,500 2,000 2,000
By Phone 2,000 1,000 1,000 1,000 1,000
Additional Fee for 5,000
meeting outside UK
(applicable for 2003
only)
Exhibit 10.23
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
As of April 14, 2003
Dear Peter,
I am pleased to confirm your appointment (the "Appointment") as a director
of P&O Princess Cruises plc (to be renamed Carnival plc (the "Company")).
The terms of the Appointment are set forth below and is conditioned upon
your signing this appointment letter.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles regarding
appointment, expenses, retirement, disqualification and removal of
directors of the Company and will terminate forthwith without any
entitlement to compensation, subject to the terms of the Employment
Agreement, if:
1.1.1 you are not re-elected at an Annual General Meeting of the
Company at which you retire and offer yourself for re-election
in accordance with the Articles; or
1.1.2 you are required to vacate office for any reason pursuant to
any of the provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to vacate
office under any applicable law.
1.2 On termination of the Appointment, you will cease to be a director of
Carnival Corporation ("Carnival"), in accordance with the articles of
incorporation and by-laws of Carnival.
1.3 You hereby agree that your Appointment does not entitle you to
compensation on termination and you shall not pursue any action or claim
for such compensation from the Company. Notwithstanding any provision of
this appointment letter to the contrary, the termination of the
Appointment will not terminate, cancel or release the obligations of any
Group company under the Employment Agreement for any Accrued Plan Benefits
(as defined in the Employment Agreement).
2. Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed to by the Board (the "Duties"). You will have all the
usual Duties of a director under English law and will be expected to
devote such time as is necessary for the proper performance of the Duties.
In carrying out the Duties you shall have particular regard to your role
as a director in the light of the Listing Rules and the Combined Code and
its policy for the time being relating to compliance with the requirements
of the Combined Code as well as such US equivalents, if applicable.
2.2 During the continuance of the Appointment you will be expected to
comply where relevant with any rule of law or regulation of any competent
authority or of the Company including the Model Code published by the
London Stock Exchange in relation to dealings in shares, debentures and
other securities of the Company and unpublished price sensitive
information affecting the shares, debentures or other securities of the
Company, as from time-to-time in force.
2.3 The Company acknowledges that the Appointment comprises part of your
duties pursuant to your office as director of Carnival. You shall carry
out the Duties as part of your duties to Carnival and you will not receive
any additional remuneration from the Company in respect of the Duties or
the Appointment. The Company further acknowledges that you are expected
to continue to carry out your existing duties to Carnival and that your
office as a director of Carnival will continue to be regulated by any
agreement between you and Carnival and will be subject to Carnival's
articles of incorporation and by-laws.
2.4 The Company will reimburse to you reasonable expenses incurred by you
in the proper performance of the Duties. The Company may request receipts
or other evidence of expenditure prior to any reimbursement pursuant to
this clause 2.4. The reimbursement arrangements are subject to change as
determined by the Board from time to time.
3. Confidential Information
3.1 You agree that during the continuance of the Appointment and
afterwards, you shall be subject to the restrictions set forth in
Paragraph 8 of the Employment Agreement.
4. Indemnity
4.1 In the event that you are made a party or are threatened to be made a
party to or witness in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that you are or were a director of the Company, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including legal fees and expenses to enforce this indemnity)
actually and reasonably incurred by you in connection with such action,
suit or proceeding and against judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding and (ii) pay
or advance to you in advance of final disposition of such action, suit or
proceeding, within 20 days of the submission of an invoice therefore, all
such expenses incurred in connection therewith, in each case of (i) and
(ii) to the fullest extent permitted by the Companies Act 1985 as amended
and any other applicable law or regulation, as from time to time in
effect. Such right of indemnification and advancement of expenses shall
be without prejudice to any other rights to which you may be entitled,
including Paragraph 19 of the Employment Agreement.
5. Insurance
To the extent possible, the Company will use its reasonable endeavours to
maintain, directly or through Carnival, appropriate directors' and
officers' liability insurance for your benefit.
6. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct
and ethics in substantially the same form as that which applies to
Carnival and its subsidiaries. You agree to observe the provisions of any
such code of business conduct and ethics.
7. Restrictive Covenants
If the Appointment is terminated pursuant to Paragraph 12.7(b) of the
Employment Agreement, you shall be subject to the restrictions set forth
in Paragraph 9 of the Employment Agreement.
8. Miscellaneous
8.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
8.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject to the
exclusive jurisdiction of the English courts.
9. Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom. For the avoidance of doubt, the Employment Agreement and the
other agreements incorporated therein or otherwise attached thereto are
not superseded by this appointment letter.
10. Definitions
In this letter:
10.1 "Articles" means the articles of association from time to time of the
Company;
10.2 "Combined Code" means the principles of good governance and code of
best practice prepared by the Committee on Corporate Governance which is
appended to the Listing Rules;
10.3 "Employment Agreement" means the employment agreement, dated April
17, 2003, between Peter Ratcliffe and P&O Princess Cruises International,
Ltd., as it may be amended or replaced from time to time;
10.4 "Group" means the Company and any subsidiary or subsidiary
undertaking of the Company (both as defined in the Companies Act 1985, as
amended);
10.5 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
10.6 "London Stock Exchange" means London Stock Exchange plc;
10.7 "Model Code" means the model code on directors' dealings in
securities set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full
name, address and occupation. Please return the copy to me at the above
address.
Yours sincerely,
/s/Howard S. Frank
Howard S. Frank
Vice Chairman Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Peter Ratcliffe
/s/Peter Ratcliffe
in the presence of
/s/ Robin Feder Witness Signature
Robin Feder Full Name
27069-3 Crossglade Ave. Address
Santa Clarita, CA 91351
Executive Assistant Occupation
Exhibit 10.24
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 17th day of April,
2003, between Carnival Corporation, a Panamanian corporation (the
"Company"), and Peter G. Ratcliffe (the "Director").
The Company, in order to induce the Director to serve on the
Company's board of directors, wishes to indemnify the Director against
certain expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director (or the Director's heirs, executors or
administrators) is made a party or is threatened to be made a party to or
witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director of the Company or P&O
Princess Cruises plc, a public limited company incorporated in England and
Wales, the Company shall (i) indemnify the Director against all expenses
of any kind whatsoever (including attorneys' fees and expenses to enforce
this agreement) actually and reasonably incurred by the Director in
connection with such action, suit or proceeding and against judgments,
fines and amounts paid in settlement in connection with such action, suit
or proceeding and (ii) pay or advance to such indemnitee in advance of
final disposition of such action, suit or proceeding, within 20 days of
the submission of an invoice therefore, all such expenses incurred in
connection therewith, in each case of (i) and (ii) to the fullest extent
and in the manner set forth in and permitted by the General Corporation
Law of the Republic of Panama and any other applicable law, as from time
to time in effect. Such right of indemnification and advancement of
expenses shall not be deemed exclusive of any other rights to which the
Director may be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by a duly authorized officer, as of
the date first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Howard S. Frank, Vice Chairman
and Chief Operating Officer
By: /s/Peter G. Ratcliffe
Peter G. Ratcliffe
Exhibit 10.25
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Mr. Stuart S. Subotnick
Metromedia
810 7th Avenue, 29th Floor
New York, NY 10019
Dear Stuart,
I am pleased to confirm your appointment (the "Appointment") as a director
of P&O Princess Cruises plc (to be renamed Carnival plc (the "Company")).
The terms of the Appointment are set forth below and is conditioned upon
the Company's board of directors (the "Board") having passed the
resolutions necessary to give effect to the Appointment, the completion of
the DLC transaction with Carnival Corporation ("Carnival") and your
signing this appointment letter. It is agreed that this is a contract for
services and is not a contract of employment.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles regarding
appointment, expenses, retirement, disqualification and removal of
directors of the Company and will terminate forthwith without any
entitlement to compensation if:
1.1.1 you are not re-elected at an Annual General Meeting of the
Company at which you retire and offer yourself for re-election
in accordance with the Articles; or
1.1.2 you are required to vacate office for any reason pursuant to
any of the provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to vacate
office under any applicable law.
1.2 You will at the request of the Company or Carnival immediately resign
(in writing) from the office of director of the Company and any other
office with a Group company and you irrevocably authorise the Company or
Carnival as your attorney in your name and on your behalf to sign all
documents and do all things necessary to give effect to this.
1.3 On termination of the Appointment, you will (a) cease to be a director
of Carnival, in accordance with the articles of incorporation and by-laws
of Carnival and (b) surrender to an authorised representative of the
Company or Carnival all correspondence, documents (including without
limitation board minutes and board papers), copies thereof or other
property of the Company and of any member of the Group made or received
by you in the course of your directorship (whether before or after the
date of this letter).
1.4 You hereby agree that on termination you shall not be entitled to and
shall not pursue any action or claim for compensation from the Company.
2. Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed by the Board (the "Duties"). You will have all the usual
Duties of a director under English law and will be expected to devote such
time as is necessary for the proper performance of the Duties including
attendance wherever practicable at regular and emergency Board meetings,
meetings of committees of the Board to which you are appointed, the annual
general meeting of the Company and any extraordinary general meeting of
the Company. In addition, you will be expected to devote appropriate
preparation time ahead of each meeting.
2.2 By accepting this Appointment, you have confirmed that you are able to
allocate sufficient time to meet the expectations of your role.
2.3 In carrying out the Duties you shall have particular regard to your
role as a director in the light of the Listing Rules and the Combined Code
and its policy for the time being relating to compliance with the
requirements of the Combined Code as well as such US equivalents, if
applicable.
2.4 During the continuance of the Appointment you will be expected to
comply where relevant with any rule of law or regulation of any competent
authority or of the Company including the Model Code published by the
London Stock Exchange in relation to dealings in shares, debentures and
other securities of the Company and unpublished price sensitive
information affecting the shares, debentures or other securities of the
Company from time-to-time in force.
2.5 You will not receive any remuneration from the Company in respect of
the Duties or the Appointment. The Company further acknowledges that you
are expected to continue to carry out your existing duties to Carnival and
that your office as a director of Carnival will continue to be regulated
by any agreement between you and Carnival and will be subject to
Carnival's articles of incorporation and by-laws.
2.6 The Company will reimburse to you reasonable expenses incurred by you
in the proper performance of the Duties. The Company may request receipts
or other evidence of expenditure prior to any reimbursement pursuant to
this clause 2.6. The reimbursement arrangements are subject to change as
determined by the Board from time to time.
3. Role
3.1 Non-executive directors have the same general legal responsibilities
to the Company as any other director. The Board as a whole is
collectively responsible for promoting the success of the company by
directing and supervising the Company's affairs. The Board:
3.1.1 Provides entrepreneurial leadership of the Company within a
framework of prudent and effective controls which enable risk
to be assessed and managed;
3.1.2 Sets the Company's strategic aims, ensures that the necessary
financial and human resources are in place for the company to
meet its objectives, and reviews management performance; and
3.1.3 Sets the Company's values and standards and ensures that its
obligations to its shareholders and others are understood and
met.
3.2 In addition to these requirements of all directors, the role of the
non-executive has the following key elements:
3.2.1 Strategy: Non-executive directors should constructively
challenge and contribute to the development of strategy;
3.2.2 Performance: Non-executive directors should scrutinize the
performance of management in meeting agreed goals and
objectives and monitor the report of performance;
3.2.3 Risk: Non-executive directors should satisfy themselves that
financial information is accurate and that financial controls
and systems of risk management are robust and defensible; and
3.2.4 People: Non-executive directors are responsible for
determining appropriate levels of remuneration of executive
directors and have a prime role in appointing, and where necessary
removing, senior-management and in succession planning.
4. Outside Interests
It is accepted and acknowledged that you have business interests other
than those of the Company and have declared any conflicts that are
apparent at present. In the event that you become aware of any potential
conflicts of interest, these should be disclosed to the Chairman and
Company Secretary as soon as apparent. You must consult with the Chairman
or Vice-Chairman before accepting any major external appointment or any
directorships in any publicly-quoted companies.
5. Confidential Information
5.1 You agree that, neither during the continuance of the Appointment nor
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction), will you use for your own or another's benefit or
disclose or permit the disclosure of any confidential information of any
member of the Group which you have obtained by virtue of the Appointment
or your employment by Carnival or in respect of which the Company is bound
by an obligation of confidence to a third party. Confidential information
shall include, without limitation, lists or details of customers,
information relating to the working of any product, process, invention,
improvement or development carried on or used by any member of the Group,
information relating to research projects, know-how, prices, discounts,
mark-ups, future business strategy, marketing, tenders, any price
sensitive information and information concerning the Company's
intellectual property portfolio and strategy.
5.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use
will be subject to any restrictive covenants to which you are a party.
6. Induction
After your Appointment, the Company will provide a comprehensive, formal
and tailored induction. The Company, upon your request, will arrange for
site visits and meetings with senior and middle management and the
Company's auditors.
7. Review Process
The performance of individual directors and the whole board and its
committees is evaluated annually. If, in the interim, there are any
matters which cause you concern about your role you should discuss them
with the Chairman as soon as is appropriate.
8. Indemnity
In the event that you are made a party or are threatened to be made a
party to or witness in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that you are or were a director of the Company, the
Company shall (i) indemnify you against all expenses of any kind
whatsoever (including legal fees and expenses to enforce this indemnity)
actually and reasonably incurred by you in connection with such action,
suit or proceeding and against judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding and (ii) pay
or advance to you in advance of final disposition of such action, suit or
proceeding, within 20 days of the submission of an invoice therefore, all
such expenses incurred in connection therewith, in each case of (i) and
(ii) to the fullest extent permitted by the Companies Act 1985 as amended
and any other applicable law or regulation, as from time to time in
effect. Such right of indemnification and advancement of expenses shall
be without prejudice to any other rights to which you may be entitled.
9. Insurance
To the extent possible, the Company will use its reasonable endeavours to
maintain, directly or through Carnival, appropriate directors' and
officers' liability insurance for your benefit. A copy of the current
policy will be provided at induction.
10. Independent Professional Advice
Occasions may arise when you consider that you need professional advice in
the furtherance of your duties as a director. Circumstances may occur
when it will be appropriate for you to seek advice from independent
advisors at the Company's expense. If it is practicable to do so, you
shall seek such advice after consultation with the chairman or vice-
chairman. The Company shall reimburse the full cost of all reasonable
expenditure incurred in obtaining such advice.
11. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct
and ethics in substantially the same form as that which applies to
Carnival and its subsidiaries. You agree to observe the provisions of any
such code of business conduct and ethics.
12. Miscellaneous
12.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
12.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject to the
exclusive jurisdiction of the English courts.
13. Entire Agreement
This appointment letter represents the entire understanding, and
constitutes the whole agreement, in relation to the Appointment and
supersedes any previous agreement between yourself and the Company with
respect thereto and, without prejudice to the generality of the foregoing,
excludes any warranty, condition or other undertaking implied at law or by
custom.
14. Definitions
In this letter:
14.1 "Articles" means the articles of association from time to time of the
Company;
14.2 "Combined Code" means the principles of good governance and code of
best practice prepared by the Committee on Corporate Governance which is
appended to the Listing Rules;
14.3 "Group" means the Company and any subsidiary or subsidiary
undertaking of the Company (both as defined in the Companies Act 1985, as
amended);
14.4 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
14.5 "London Stock Exchange" means London Stock Exchange plc;
14.6 "Model Code" means the model code on directors' dealings in
securities set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full
name, address and occupation. Please return the copy to me at the above
address.
Yours sincerely
/s/Howard S. Frank
Howard S. Frank
Vice Chairman Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Stuart S. Subotnick
/s/Stuart S. Subotnick
in the presence of
/s/ A. Perez Witness Signature
Arnaldo Perez Full Name
10220 SW 58CT Address
Miami, FL
Lawyer Occupation
Exhibit 10.26
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 17th day of April,
2003, between Carnival Corporation, a Panamanian corporation (the
"Company"), and Stuart S. Subotnick (the "Director").
The Company, in order to induce the Director to serve on the
Company's board of directors, wishes to indemnify the Director against
certain expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director (or the Director's heirs, executors or
administrators) is made a party or is threatened to be made a party to or
witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director of the Company or P&O
Princess Cruises plc, a public limited company incorporated in England and
Wales, the Company shall (i) indemnify the Director against all expenses
(including attorneys' fees and expenses to enforce this agreement),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding and
(ii) pay or advance to such indemnitee in advance of final disposition of
such action, suit or proceeding, within 20 days of the submission of an
invoice therefore, all such expenses incurred in connection therewith, in
each case of (i) and (ii) to the fullest extent and in the manner set
forth in and permitted by the General Corporation Law of the Republic of
Panama and any other applicable law, as from time to time in effect. Such
right of indemnification and advancement of expenses shall not be deemed
exclusive of any other rights to which the Director may be entitled apart
from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by a duly authorized officer, as of
the date first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Howard S. Frank, Vice Chairman
and Chief Operating Officer
By: /s/Stuart S. Subotnick
Stuart S. Subotnick
Exhibit 10.27
CARNIVAL PLC
STRICTLY PRIVATE & CONFIDENTIAL
ADDRESSEE ONLY
April 14, 2003
Mr. Uzi Zucker
Bear, Stearns & Company
383 Madison Avenue
New York, NY 10179
Dear Uzi,
I am pleased to confirm your appointment (the "Appointment") as a director of
P&O Princess Cruises plc (to be renamed Carnival plc (the "Company")). The
terms of the Appointment are set forth below and is conditioned upon the
Company's board of directors (the "Board") having passed the resolutions
necessary to give effect to the Appointment, the completion of the DLC
transaction with Carnival Corporation ("Carnival") and your signing this
appointment letter. It is agreed that this is a contract for services and is
not a contract of employment.
1. Term of Appointment
1.1 The Appointment is subject to the provisions of the Articles regarding
appointment, expenses, retirement, disqualification and removal of directors
of the Company and will terminate forthwith without any entitlement to
compensation if:
1.1.1 you are not re-elected at an Annual General Meeting of the Company at
which you retire and offer yourself for re-election in accordance with the
Articles; or
1.1.2 you are required to vacate office for any reason pursuant to any of the
provisions of the Articles; or
1.1.3 you are removed as a director or otherwise required to vacate office
under any applicable law.
1.2 You will at the request of the Company or Carnival immediately resign (in
writing) from the office of director of the Company and any other office with
a Group company and you irrevocably authorise the Company or Carnival as your
attorney in your name and on your behalf to sign all documents and do all
things necessary to give effect to this.
1.3 On termination of the Appointment, you will (a) cease to be a director of
Carnival, in accordance with the articles of incorporation and by-laws of
Carnival and (b) surrender to an authorised representative of the Company or
Carnival all correspondence, documents (including without limitation board
minutes and board papers), copies thereof or other property of the Company and
of any member of the Group made or received by you in the course of your
directorship (whether before or after the date of this letter).
1.4 You hereby agree that on termination you shall not be entitled to and
shall not pursue any action or claim for compensation from the Company.
2. Duties
2.1 You shall carry out such duties as set forth in the Articles and as
otherwise agreed by the Board (the "Duties"). You will have all the usual
Duties of a director under English law and will be expected to devote such
time as is necessary for the proper performance of the Duties including
attendance wherever practicable at regular and emergency Board meetings,
meetings of committees of the Board to which you are appointed, the annual
general meeting of the Company and any extraordinary general meeting of the
Company. In addition, you will be expected to devote appropriate preparation
time ahead of each meeting.
2.2 By accepting this Appointment, you have confirmed that you are able to
allocate sufficient time to meet the expectations of your role.
2.3 In carrying out the Duties you shall have particular regard to your role
as a director in the light of the Listing Rules and the Combined Code and its
policy for the time being relating to compliance with the requirements of the
Combined Code as well as such US equivalents, if applicable.
2.4 During the continuance of the Appointment you will be expected to comply
where relevant with any rule of law or regulation of any competent authority
or of the Company including the Model Code published by the London Stock
Exchange in relation to dealings in shares, debentures and other securities of
the Company and unpublished price sensitive information affecting the shares,
debentures or other securities of the Company from time-to-time in force.
2.5 You will not receive any remuneration from the Company in respect of the
Duties or the Appointment. The Company further acknowledges that you are
expected to continue to carry out your existing duties to Carnival and that
your office as a director of Carnival will continue to be regulated by any
agreement between you and Carnival and will be subject to Carnival's articles
of incorporation and by-laws.
2.6 The Company will reimburse to you reasonable expenses incurred by you in
the proper performance of the Duties. The Company may request receipts or
other evidence of expenditure prior to any reimbursement pursuant to this
clause 2.6. The reimbursement arrangements are subject to change as determined
by the Board from time to time.
3. Role
3.1 Non-executive directors have the same general legal responsibilities to
the Company as any other director. The Board as a whole is collectively
responsible for promoting the success of the company by directing and
supervising the Company's affairs. The Board:
3.1.1 Provides entrepreneurial leadership of the Company within a
framework of prudent and effective controls which enable risk to
be assessed and managed;
3.1.2 Sets the Company's strategic aims, ensures that the necessary
financial and human resources are in place for the company to
meet its objectives, and reviews management performance; and
3.1.3 Sets the Company's values and standards and ensures that its
obligations to its shareholders and others are understood and
met.
3.2 In addition to these requirements of all directors, the role of the non-
executive has the following key elements:
3.2.1 Strategy: Non-executive directors should constructively
challenge and contribute to the development of strategy;
3.2.2 Performance: Non-executive directors should scrutinize the
performance of management in meeting agreed goals and objectives
and monitor the report of performance;
3.2.3 Risk: Non-executive directors should satisfy themselves that
financial information is accurate and that financial controls
and systems of risk management are robust and defensible; and
3.2.4 People: Non-executive directors are responsible for determining
appropriate levels of remuneration of executive directors and
have a prime role in appointing, and where necessary removing,
senior-management and in succession planning.
4. Outside Interests
It is accepted and acknowledged that you have business interests other than
those of the Company and have declared any conflicts that are apparent at
present. In the event that you become aware of any potential conflicts of
interest, these should be disclosed to the Chairman and Company Secretary as
soon as apparent. You must consult with the Chairman or Vice-Chairman before
accepting any major external appointment or any directorships in any publicly-
quoted companies.
5. Confidential Information
5.1 You agree that, neither during the continuance of the Appointment nor
afterwards (unless authorised to do so by the Board or by a court of competent
jurisdiction), will you use for your own or another's benefit or disclose or
permit the disclosure of any confidential information of any member of the
Group which you have obtained by virtue of the Appointment or your employment
by Carnival or in respect of which the Company is bound by an obligation of
confidence to a third party. Confidential information shall include, without
limitation, lists or details of customers, information relating to the working
of any product, process, invention, improvement or development carried on or
used by any member of the Group, information relating to research projects,
know-how, prices, discounts, mark-ups, future business strategy, marketing,
tenders, any price sensitive information and information concerning the
Company's intellectual property portfolio and strategy.
5.2 The restrictions contained in this clause shall cease to apply to any
confidential information which may (other than by reason of your breach of
these terms) become available to the public generally, but any such use will
be subject to any restrictive covenants to which you are a party.
6. Induction
After your Appointment, the Company will provide a comprehensive, formal and
tailored induction. The Company, upon your request, will arrange for site
visits and meetings with senior and middle management and the Company's
auditors.
7. Review Process
The performance of individual directors and the whole board and its committees
is evaluated annually. If, in the interim, there are any matters which cause
you concern about your role you should discuss them with the Chairman as soon
as is appropriate.
8. Indemnity
In the event that you are made a party or are threatened to be made a party to
or witness in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the
fact that you are or were a director of the Company, the Company shall (i)
indemnify you against all expenses of any kind whatsoever (including legal
fees and expenses to enforce this indemnity) actually and reasonably incurred
by you in connection with such action, suit or proceeding and against
judgments, fines and amounts paid in settlement in connection with such
action, suit or proceeding and (ii) pay or advance to you in advance of final
disposition of such action, suit or proceeding, within 20 days of the
submission of an invoice therefore, all such expenses incurred in connection
therewith, in each case of (i) and (ii) to the fullest extent permitted by the
Companies Act 1985 as amended and any other applicable law or regulation, as
from time to time in effect. Such right of indemnification and advancement of
expenses shall be without prejudice to any other rights to which you may be
entitled.
9. Insurance
To the extent possible, the Company will use its reasonable endeavours to
maintain, directly or through Carnival, appropriate directors' and officers'
liability insurance for your benefit. A copy of the current policy will be
provided at induction.
10. Independent Professional Advice
Occasions may arise when you consider that you need professional advice in the
furtherance of your duties as a director. Circumstances may occur when it
will be appropriate for you to seek advice from independent advisors at the
Company's expense. If it is practicable to do so, you shall seek such advice
after consultation with the chairman or vice-chairman. The Company shall
reimburse the full cost of all reasonable expenditure incurred in obtaining
such advice.
11. Code of Business Conduct and Ethics
It is expected that the Company will enter into a code of business conduct and
ethics in substantially the same form as that which applies to Carnival and
its subsidiaries. You agree to observe the provisions of any such code of
business conduct and ethics.
12. Miscellaneous
12.1 Nothing in this letter shall create the relationship of employee and
employer between you and the Company.
12.2 The agreement contained in this letter shall be governed by, and
construed in accordance with, English law and shall be subject to the
exclusive jurisdiction of the English courts.
13. Entire Agreement
This appointment letter represents the entire understanding, and constitutes
the whole agreement, in relation to the Appointment and supersedes any
previous agreement between yourself and the Company with respect thereto and,
without prejudice to the generality of the foregoing, excludes any warranty,
condition or other undertaking implied at law or by custom.
14. Definitions
In this letter:
14.1 "Articles" means the articles of association from time to time of the
Company;
14.2 "Combined Code" means the principles of good governance and code of best
practice prepared by the Committee on Corporate Governance which is appended
to the Listing Rules;
14.3 "Group" means the Company and any subsidiary or subsidiary undertaking of
the Company (both as defined in the Companies Act 1985, as amended);
14.4 "Listing Rules" means the Listing Rules published by the UK Listing
Authority;
14.5 "London Stock Exchange" means London Stock Exchange plc;
14.6 "Model Code" means the model code on directors' dealings in securities
set out in the appendix to Chapter 16 of the Listing Rules.
Kindly confirm your agreement to the terms set out above by signing the
endorsement on the enclosed copy of this letter in the presence of an
independent adult witness who should also sign and add his or her full name,
address and occupation. Please return the copy to me at the above address.
Yours sincerely
/s/ Howard S. Frank
Howard S. Frank
Vice Chairman Elect
for and on behalf of
P&O Princess Cruises plc
(to be renamed Carnival plc)
EXECUTED as a DEED
by Mr. Uzi Zucker
/s/ Uzi Zucker
in the presence of
/s/ Irma M. Tharp Witness Signature
Irma M. Tharp Full Name
9525 SW 165th Terr.. Address
Miami, FL 33157
Legal Assistant Occupation
Exhibit 10.28
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 17th day of April, 2003,
between Carnival Corporation, a Panamanian corporation (the "Company"), and
Uzi Zucker (the "Director").
The Company, in order to induce the Director to serve on the Company's
board of directors, wishes to indemnify the Director against certain expenses
and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director (or the Director's heirs, executors or
administrators) is made a party or is threatened to be made a party to or
witness in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the
fact that he is or was a director of the Company or P&O Princess Cruises plc,
a public limited company incorporated in England and Wales, the Company shall
(i) indemnify the Director against all expenses (including attorneys' fees and
expenses to enforce this agreement), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding and (ii) pay or advance to such indemnitee in
advance of final disposition of such action, suit or proceeding, within 20
days of the submission of an invoice therefore, all such expenses incurred in
connection therewith, in each case of (i) and (ii) to the fullest extent and
in the manner set forth in and permitted by the General Corporation Law of the
Republic of Panama and any other applicable law, as from time to time in
effect. Such right of indemnification and advancement of expenses shall not
be deemed exclusive of any other rights to which the Director may be entitled
apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed by a duly authorized officer, as of the date
first above written.
CARNIVAL CORPORATION
By: /s/Howard S. Frank
Howard S. Frank, Vice Chairman
and Chief Operating Officer
By:/s/ Uzi Zucker
Uzi Zucker
EXHIBIT 12
CARNIVAL CORPORATION & PLC
Ratio of Earnings to Fixed Charges
(in thousands, except ratios)
Six Months
Ended May 31,
2003 2002
Net income $254,674 $323,841
Income tax benefit, net (8,531) (7,799)
Income before income taxes 246,143 316,042
Fixed charges
Interest expense, net 70,906 57,467
Interest portion of rent
expense(1) 3,524 2,342
Capitalized interest 22,351 16,059
Total fixed charges 96,781 75,868
Fixed charges not affecting
earnings
Capitalized interest (22,351) (16,059)
Earnings before fixed
charges $320,573 $375,851
Ratio of earnings to
fixed charges 3.3x 5.0x
(1) Represents one-third of rent expense, which we believe to be
representative of the interest portion of rent expense.
EXHIBIT 99.1
Certification Pursuant to 18 U.S.C. Section 1350,
as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report on Form 10-Q for the quarter
ended May 31, 2003 as filed by Carnival Corporation with the Securities and
Exchange Commission on the date hereof (the "Report"), the undersigned,
certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section
906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of Carnival
Corporation.
Date: July 15, 2003
By:/s/ Micky Arison
Micky Arison
Chairman of the Board of Directors
and Chief Executive Officer
By:/s/ Howard S. Frank
Howard S. Frank
Vice Chairman of the Board of Directors
and Chief Operating Officer
By:/s/ Gerald R. Cahill
Gerald R. Cahill
Senior Vice President-Finance
and Chief Financial and
Accounting Officer
A signed original of this written statement required by Section 906 has
been provided to Carnival Corporation and will be retained by Carnival
Corporation and furnished to the Securities and Exchange Commission or its
staff upon request.
EXHIBIT 99.2
Certification Pursuant to 18 U.S.C. Section 1350,
as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report on Form 10-Q for the quarter
ended May 31, 2003 as filed by Carnival plc with the Securities and Exchange
Commission on the date hereof (the "Report"), the undersigned, certify
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of Carnival
plc.
Date: July 15, 2003
By:/s/ Micky Arison
Micky Arison
Chairman of the Board of Directors
and Chief Executive Officer
BY:/s/ Howard S. Frank
Howard S. Frank
Vice Chairman of the Board of Directors
and Chief Operating Officer
By:/s/ Gerald R. Cahill
Gerald R. Cahill
Senior Vice President-Finance
and Chief Financial and
Accounting Officer
A signed original of this written statement required by Section 906 has
been provided to Carnival plc and will be retained by Carnival plc and
furnished to the Securities and Exchange Commission or its staff upon
request.