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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 12, 1995
REGISTRATION NO. 33-58151
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CARNIVAL CORPORATION
(Exact name of registrant as specified in its charter)
Exhibit 1(a)
Carnival Corporation
Class A Common Stock
(par value $.01 per Share)
Underwriting Agreement
(U.S. Version)
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....................., 1995
Goldman, Sachs & Co.,
Bear, Stearns & Co. Inc.,
Merrill Lynch, Pierce Fenner & Smith Incorporated,
As representatives of the several Underwriters
named in Schedule II hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Certain stockholders named in Schedule V hereto (the
"Selling Stockholders") of Carnival Corporation, a company incor-
porated under the laws of the Republic of Panama (the "Company"),
propose, subject to the terms and conditions stated herein, to
sell to the underwriters named in Schedule II hereto (the "Under-
writers"), for whom you (the "Representatives") are acting as
representatives, the aggregate number of shares of the Company's
Class A Common Stock, par value $.01 per share ("Stock"), identi-
fied in Schedule I hereto (the "Firm Shares").
The Company also grants to the Underwriters, severally
and not jointly, the right to purchase at their election in the
aggregate all or any part of the number of additional Shares (the
"Optional Shares") set forth on Schedule I to cover over-allot-
ments. The Firm Shares, together with all or any part of the
Optional Shares, are collectively herein called the "Shares".
The Shares are more fully described in the Prospectus referred to
below.
It is understood and agreed to by all parties that the
Company and the Selling Stockholders are concurrently entering
into an agreement (the "International Underwriting Agreement")
providing for the sale by the Selling Stockholders and the
Company of up to a total of 3,174,000 shares of Stock (the
"International Shares"), including the overallotment option
thereunder, through arrangements with certain underwriters
outside the United States (the "International Underwriters"), for
whom Goldman Sachs International, Bear, Stearns International
Limited and Merrill Lynch International Limited are acting as
lead managers. Anything herein or therein to the contrary
notwithstanding, the respective closings under this Agreement and
the International Underwriting Agreement are hereby expressly
made conditional on one another. The Underwriters hereunder and
the International Underwriters are simultaneously entering into
an Agreement between U.S. and International Underwriting
Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between
the two syndicates. Two forms of prospectus are to be used in
connection with the offering and sale of shares of Stock
contemplated by the foregoing, one relating to the Shares
hereunder and the other relating to the International Shares.
The latter form of prospectus will be identical to the former
except for certain substitute pages as included in the
registration statement and amendments thereto as mentioned below.
Except as used in Sections 2, 3, 4, and 9 herein, and except as
the context may otherwise require, references hereinafter to the
Shares shall include all the shares of Stock which may be sold
pursuant to either this Agreement or the International
Underwriting Agreement, and references herein to any prospectus
whether in preliminary or final form, and whether as amended or
supplemented, shall include both the U.S. and the international
versions thereof.
2
1. Representations and Warranties. (A) The Company
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represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1. Certain terms used in this
Section 1 are defined at the end of this Section 1.
(a) If the offering of the Shares is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is
applicable and, if the offering of the Shares is a Non-
Delayed Offering (as so specified), paragraph (ii) below is
applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act")
and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement
(the file number of which is set forth in Schedule I
hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of
the Shares. The Company may have filed one or more
amendments thereto, and may have used a Preliminary
Final Prospectus, each of which has previously been
furnished to you. Such registration statement, as so
amended, has become effective. The offering of the
Shares is a Delayed Offering and, although the Basic
Prospectus may not include all the information with
respect to the Shares and the offering thereof required
by the Act and the rules thereunder to be included in
the Final Prospectus, the Basic Prospectus includes all
such information required by the Act and the rules and
regulations thereunder to be included therein as of the
Effective Date. The Company will next file with the
Commission pursuant to Rule 424(b)(2) or (5) a final
supplement to the form of prospectus included in such
registration statement relating to the Shares and the
offering thereof. As filed, such final prospectus
supplement shall include all required information with
respect to the Shares and the offering thereof and,
except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific addi-
tional information and other changes (beyond those
contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior
to the Execution Time, will be included or made
therein.
(ii) The Company meets the requirements for the use of
Form S-3 under the Act and has filed with the
Commission a registration statement (the file number of
which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under
the Act of the offering and sale of the Shares. The
Company may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will
next file with the Commission either (x) a final pros-
pectus relating to the Shares in accordance with Rules
430A and 424(b) (1) or (4), or (y) prior to the
effectiveness of such registration statement, an
amendment to such registration statement, including the
form of final prospectus. In the case of clause (x),
the Company has included in such registration
statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required
by the Act and the rules thereunder to be included in
the Final Prospectus with respect to the Shares and the
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offering thereof. As filed, such final prospectus
supplement or such amendment and form of final prospec-
tus supplement shall contain all Rule 430A Information,
together with all other such required information, with
respect to the Shares and the offering thereof and,
except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific addi-
tional
4
information and other changes (beyond that contained in
the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did
or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing
Date, the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable
requirements of the Act, the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; on
the Effective Date, the Registration Statement did not or
will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated
therein or necessary in order to make the statements therein
not misleading; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), did not or
will not, and on the date of any filing pursuant to Rule
424(b) and at each Time of Delivery (as defined herein), the
Final Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however,
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that the Company makes no representations or warranties as
to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto).
(c) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial
statements included or incorporated by reference in the
Final Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as
set forth or contemplated in the Final Prospectus, in either
case which could reasonably be expected to have a material
adverse effect on the general affairs, business, financial
position, shareholders' equity or results of operations of
the Company and its subsidiaries taken as a whole; and,
since the respective dates as of which information is given
in the Registration Statement and the Final Prospectus,
there has not been (i) any change in the capital stock or
increase in long-term debt of the Company on a consolidated
basis other than any increase in the capital stock upon the
issuance of shares or options pursuant to employee stock
option or other benefit plans, pursuant to contracts with
officers or employees of the Company and its subsidiaries,
any increase in capital stock upon the conversion of the
Company's 4 1/2% Convertible Subordinated Notes due July 15,
1997, and any increase in long term debt in excess of
$10,000,000, or (ii) any increase in short-term debt of the
Company in excess of $10,000,000 or (iii) any material
adverse change, or any development involving a prospective
material adverse change, in or affecting the general
affairs, business, management, financial position, share-
holders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Final Prospectus;
(d) The subsidiaries of the Company listed on Schedule III
hereto are hereinafter referred to as the "Subsidiaries."
All other Subsidiaries of the Company, in the aggregate, do
5
not constitute a "Significant Subsidiary" as defined in
Regulation S-X. The Company and each Subsidiary has good
and marketable title to all real property and good and
marketable title to all personal property owned by it, in
each case free and clear of all liens, encumbrances and
defects except such as are described in the Final Prospec-
tus, such as are identified on Schedule III or IV hereof or
such as in the aggregate do not have and can reasonably be
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expected in the future not to have a material adverse effect
upon the general affairs, business, financial position,
shareholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole; and any real
property and buildings held under lease by the Company or
any of the Subsidiaries are held by it under valid, subsist-
ing and enforceable leases with such exceptions described in
the Final Prospectus or such exceptions that in the aggre-
gate do not have and can reasonably be expected in the
future not to have a material adverse effect upon the
general affairs, business, financial position, shareholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole;
(e) The Company and each of the Subsidiaries has been duly
incorporated and is validly existing as a corporation in
good standing (where applicable) under the laws of its
jurisdiction of incorporation, with full power and authority
(corporate and other), and all necessary consents, authori-
zations, approvals, orders, licenses, certificates and
permits of and from, and declarations and filings with, all
federal, state, local and other governmental authorities, to
own, lease, license and use its properties and conduct its
business as described in the Final Prospectus (except for
such consents, authorizations, approvals, orders, licenses,
certificates, permits, declarations and filings, for which
the failure to have obtained, individually or in the aggre-
gate, does not and can reasonably be expected in the future
not to have a material adverse effect upon the general
affairs, business, financial position, shareholders' equity
or results of operations of the Company and its subsidi-
aries, taken as a whole), and has been duly qualified as a
foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any
business, which requires such qualification (except where
the failure to be so qualified or in good standing does not,
and can reasonably be expected in the future not to, have a
material adverse effect upon the general affairs, business,
financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a
whole);
(f) The Company has an authorized capitalization as set
forth in the Final Prospectus, and all of the issued shares
of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
and all of the issued shares of capital stock of each
Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, security interests or
claims, except as otherwise disclosed in Schedule III
hereto;
(g) The unissued Optional Shares have been duly and validly
authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued
and fully paid and non-assessable and will conform, in all
material respects, to the description of the Stock contained
in the Final Prospectus;
(h) The Company has all requisite power and authority to
execute, deliver and perform this Agreement and the Inter-
national Underwriting Agreement and to issue, sell and
deliver the Optional Shares to be issued and sold by the
Company to the Underwriters hereunder and under the
International Underwriting Agreement in accordance with and
upon the terms and conditions set forth in this Agreement
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and the International Underwriting Agreement. All necessary
corporate proceedings of the Company have been duly taken to
authorize the execution, delivery and performance by the
Company of this Agreement and the International Underwriting
Agreement. The issue and sale of the Shares and the compli-
ance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement, and
the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or
8
constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of
the Subsidiaries is bound or to which any of the property or
assets of the Company or any of the Subsidiaries is subject;
nor will such actions result in any violation of any statute
or any order, rule or regulation binding on the Company or
any of the Subsidiaries or any of their properties, except,
with respect to jurisdictions outside the United States and
Panama, for violations which, individually or in the
aggregate, would not have a material adverse effect on the
business, financial condition or results of operations of
the Company and its subsidiaries taken as a whole or on the
ability of the Company to issue and sell or of the
Underwriters to receive good and valid title to the Shares
being sold hereunder; and no consent, approval,
authorization, order, registration or qualification of or
with any court or governmental agency or body is required
for the issue and sale of the Shares or the consummation by
the Company of transactions contemplated by this Agreement
and the International Underwriting Agreement, except the
registration under the Act of the Shares and such consents,
approvals, authorizations, registrations or qualifications
as may be required under state or foreign securities or Blue
Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters and the International Under-
writers;
(i) Other than as set forth in the Final Prospectus, there
are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is subject, which could reasonably be expected to
individually or in the aggregate have a material adverse
effect on the consolidated financial position, shareholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole; and, to the Company's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others. Neither the Company nor any subsidiary is in
violation of, or in default with respect to, any law, rule,
regulation, order, judgment or decree, except as may be
properly described in the Final Prospectus and such as in
the aggregate do not now have and can reasonably be expected
in the future not to have a material adverse effect on the
general affairs, business, financial position, shareholders'
equity or results of operations of the Company and the
subsidiaries, taken as a whole; nor is the Company or any
subsidiary required to take any action in order to avoid
such violation or default;
(j) Price Waterhouse LLP, who have certified certain
financial statements of the Company and its subsidiaries,
are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder;
(k) All patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights,
franchises and other intangible properties and assets (all
of the foregoing being herein called "Intangibles") that the
Company or any of its subsidiaries owns or has pending, or
under which it is licensed, are in good standing and
uncontested, except for such Intangibles (individually or in
the aggregate) where the failure to be in good standing and
uncontested does not and can reasonably be expected in the
future not to have a material adverse effect upon the
general affairs, business, financial position, shareholders'
equity or results of operations of the Company and its
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subsidiaries, taken as a whole. Neither the Company nor any
of its subsidiaries has infringed, is infringing, or has
received notice of infringement with respect to asserted
Intangibles of others, except such as individually or in the
aggregate do not now have and can reasonably be expected in
the future not to have a material adverse effect upon the
general affairs, business, financial position, shareholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole. To the knowledge of the
Company, there is no infringement by others of Intangibles
of the Company
10
or of any of its subsidiaries except such as individually or
in the aggregate do not now have and can reasonably be
expect in the future not to have a material adverse effect
upon the general affairs, business, financial position,
shareholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole;
(l) Neither the Company, nor any subsidiary, is now or is
expected by the Company or any subsidiary to be in violation
or breach of, or in default with respect to, complying with
any material provision of any contract, agreement
instrument, lease, license, arrangement or understanding
which is material to the Company and its subsidiaries, taken
as a whole, and each such contract, agreement, instrument,
lease, license, arrangement and understanding is in full
force and is the legal, valid and binding obligation of the
Company and its subsidiaries and is enforceable as to them
is accordance with its terms. Each of the Company and each
Subsidiary enjoys peaceful and undisturbed possession under
all material leases and licenses under which it is operat-
ing. Neither the Company nor any Subsidiary is a party to
or bound by any contract, agreement, instrument, lease,
license, arrangement or understanding, or subject to any
charter or other restriction, which has had or may in the
future be reasonably expect to have a material adverse
effect on the general affairs, business, financial position,
shareholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole. Neither the Company
nor any Subsidiary is in violation or breach of, or in
default with respect to, any term of its certificate of
incorporation (or other charter document) or by-laws;
(m) The Company, directly or indirectly, holds good and
marketable title to each of the vessels listed on Schedule
IV hereto, subject only to the liens listed therein and
maritime liens in the ordinary course of business. Each
such vessel is duly registered under the laws of the juris-
diction listed opposite its name on Schedule IV hereto;
(n) The Company is not and, after giving effect to the
offering and sale of the Optional Shares, will not be an
"investment company", as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act"); and
(o) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Sec-
tion 517.075, Florida Statutes.
The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto. "Basic Pros-
pectus" shall mean the prospectus referred to in paragraph (a)
above contained in the Registration Statement at the Effective
Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus"
shall mean any preliminary prospectus which describes the Shares
and the offering thereof and is used prior to filing of the Final
Prospectus. "Final Prospectus" shall mean the prospectus
relating to the Shares that is first filed pursuant to Rule
424(b) after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering, no
filing pursuant to Rule 424(b) is required, shall mean the form
of final prospectus relating to the Shares, including the Basic
Prospectus, included in the Registration Statement at the
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Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall
become effective) and, in the event any post-effective amendment
thereto becomes effective prior to the First Time of Delivery (as
defined in Section 4 hereof), shall also mean such registration
statement as so amended. Such term
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shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A. "Rule
415," "Rule 424," "Rule 430A," "Regulation S-K" and "Regulation
S-X" refer to such rules or regulation under the Act. "Rule 430A
Information" means information with respect to the Shares and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to
the terms "amend," "amendment" or "supplement" with respect to
the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to
be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration
statement, with the result that, pursuant to Rules 415 and 430A,
all information (other than Rule 430A Information) with respect
to the securities so offered must be included in such
registration statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of securities pursuant to Rule
415 which does not commence promptly after the effective date of
a registration statement, with the result that only information
required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect
to the securities so offered. Whether the offering of the Shares
is a Non-Delayed Offering or a Delayed Offering shall be set
forth in Schedule I hereto.
(B) Each of the Selling Stockholders severally repre-
sents and warrants to, and agrees with, each of the Underwriters
and the Company that:
(a) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling
Stockholder of this Agreement, the International
Underwriting Agreement, the Power of Attorney and the
Custody Agreement hereinafter referred to, and for the sale
of and delivery of the Shares to be sold by such Selling
Stockholder hereunder and under the International
Underwriting Agreement, have been obtained; subject,
however, to the exception with respect to jurisdictions
outside the United States and Panama, for violations which
individually or in the aggregate, would not have a material
adverse effect on the business, financial condition or
results of operations of the Company and its subsidiaries
taken as a whole or on the ability of the Company to issue
and sell or of the Underwriters to receive good and valid
title to the Shares being sold hereunder and to the
exception that orders or other authorizations may be
required under the 1933 Act or under state securities or
Blue Sky laws in connection with the purchase and
distribution by the Underwriters of the Shares to be sold by
such Selling Stockholder; and such Selling Stockholder has
full right, power and authority to enter into this Agree-
ment, the International Underwriting Agreement, the Power of
Attorney and the Custody Agreement and to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder and under the International
Underwriting Agreement;
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(b) The sale of the Shares to be sold by such Selling
Stockholder hereunder and under the International
Underwriting Agreement and the compliance by such Selling
Stockholder with all of the provisions of this Agreement,
the International Underwriting Agreement, the Power of
Attorney and the Custody Agreement, and the consummation of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under,
any statute, indenture, mortgage, deed of trust,
14
loan agreement or other agreement or instrument to which
such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or
assets of such Selling Stockholder is subject, nor will such
action result in any violation of the provisions of the
Articles of Incorporation, By-laws, governing trust
indenture, or other governing instrument, as the case may
be, of such Selling Stockholder or any statute or any order,
rule or regulation of any court or governmental agency or
body having jurisdiction over such Selling Stockholder or
the property of such Selling Stockholder;
(c) Such Selling Stockholder has, and immediately prior to
the First Time of Delivery (as defined in Section 4 hereof)
such Selling Stockholder will have, good and valid title to
the Shares to be sold by such Selling Stockholder hereunder
and under the International Underwriting Agreement, free and
clear of all liens, encumbrances, equities or claims; and,
upon delivery of such Shares and payment therefor pursuant
hereto, good and valid title to such Shares, free and clear
of all liens, encumbrances, equities or claims, will pass to
the several Underwriters or the International Underwriters,
as the case may be;
(d) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date
of the Final Prospectus, not to offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder
or under the International Underwriting Agreement, any
shares of Stock or any security of the Company substantially
similar thereto, or any other security convertible into or
exchangeable for, or that represents the right to receive,
Stock or any security substantially similar thereto (other
than pursuant to employee stock option plans existing on, or
upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this
Agreement), without the prior written consent of the
Representatives;
(e) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate
the sale or resale of the Shares;
(f) To the extent that any statements or omissions made in
the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus, the Final Prospectus or any
amendment or supplement thereto are made in reliance upon
and in conformity with written information furnished to the
Company by such Selling Stockholder expressly for use
therein, such Basic Prospectus, Preliminary Final Prospectus
and the Registration Statement did, and the Final Prospectus
and any further amendments or supplements to the
Registration Statement and the Final Prospectus, when they
become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and, in the case of the Registration
Statement, will not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements
therein not misleading and, in the case of such other
documents, will not contain any untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein, in the light of the
circumstances under which they are made, not misleading;
15
(g) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity
and Fiscal Responsibility Act of 1982 with respect to the
transactions herein contemplated, such Selling Stockholder
will deliver to you prior to or at the First Time of
Delivery (as defined in Section 4 hereof) a properly
completed and executed
16
United States Treasury Department Form W-8 or W-9 (or other
applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(h) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Stockholder hereunder and
under the International Underwriting Agreement have been
placed in custody under a Custody Agreement, in the form
heretofore furnished to you (the "Custody Agreement"), duly
executed and delivered by such Selling Stockholder to
Macfarlanes as custodian (the "Custodian"), and such Selling
Stockholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you (the
"Power of Attorney"), appointing John Guy Rhodes and Timothy
Robin Vos, and each of them, as such Selling Stockholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority
to execute and deliver this Agreement on behalf of such
Selling Stockholder, to determine the purchase price to be
paid by the Underwriters and the International Underwriters
to the Selling Stockholders as provided in Section 2 hereof,
to authorize the delivery of the Shares to be sold by such
Selling Stockholder hereunder and otherwise to act on behalf
of such Selling Stockholder in connection with the
transactions contemplated by this Agreement, the
International Underwriting Agreement and the Custody
Agreement; and
(i) The Shares represented by the certificates held in
custody for such Selling Stockholder under the Custody
Agreement are subject to the interests of the Underwriters
hereunder and the International Underwriters under the
International Underwriting Agreement; the arrangements made
by such Selling Stockholder for such custody, and the
appointment by such Selling Stockholder of the Attorneys-in-
Fact by the Power of Attorney, are to that extent
irrevocable; the obligations of such Selling Stockholder
hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling
Stockholder or, in the case of an estate or trust, by the
death or incapacity of any executor or trustee or the
termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such
partnership or corporation, or by the occurrence of any
other event; if any individual Selling Stockholder or any
such executor or trustee should die or become incapacitated,
or if any such estate or trust should be terminated, or if
any such partnership or corporation should be dissolved, or
if any other such event should occur, before the delivery of
the Shares hereunder, certificates representing the Shares
shall be delivered by or on behalf of such Selling
Stockholder in accordance with the terms and conditions of
this Agreement, of the International Underwriting Agreement
and of the Custody Agreement; and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall
be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of
whether or not the Custodian, the Attorneys-in-Fact, or any
of them, shall have received notice of such death,
incapacity, termination, dissolution or other event.
2. Purchase and Sale. Subject to the terms and
-------------------
conditions and in reliance upon the representations and warran-
ties herein set forth, (a) each of the Selling Stockholders
agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from each of the Selling
Stockholders, at a purchase price per share as set forth in
Schedule I hereto, the number of Firm Shares (to be adjusted by
you so as to eliminate fractional shares) determined by multi-
plying the aggregate number of Firm Shares to be sold by each of
17
the Selling Stockholders as set forth opposite their respective
names in Schedule V hereto by a fraction, the numerator of which
is the aggregate number of Firm Shares to be purchased by such
Underwriter as set forth opposite the name of such Underwriter in
Schedule II hereto and the denominator of which is the aggregate
number of Firm Shares to be purchased by all of the Underwriters
from all of the Selling Stockholders hereunder and (b) in the
event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares, the Company agrees to sell
to each Underwriter, and each of the Underwriters agrees,
18
severally and not jointly, to purchase from the Company, at a
purchase price per share as set forth in Schedule I hereto, that
portion of the number of Optional Shares as to which such
election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) as set forth opposite the name of
such Underwriters in Schedule II hereto. Any such election to
purchase Optional Shares may be exercised only by written notice
from you to the Company, given within a period of 30 calendar
days after the Execution Time and setting forth the aggregate
number of Optional Shares to be purchased and the date on which
such Optional Shares are to be delivered, as determined by you
but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Offering of Shares. Upon the authorization by you
------------------
of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and
conditions set forth in the Final Prospectus.
4. Delivery and Payment. Delivery of and payment for
--------------------
the Firm Shares shall be made on the date and at the time speci-
fied in Schedule I hereto, which date and time may be postponed
by agreement between the Representatives and the Selling Stock-
holders or as provided in Section 9 hereof (such date and time of
delivery and payment for the Firm Shares being herein called the
"First Time of Delivery"). Delivery of and payment for the
Optional Shares shall be on the date and at the time specified by
you in the written notice given by you of the Underwriters' elec-
tion to purchase the Optional Shares, or at such other time and
date as you and the Company may agree upon in writing. Such date
and time of delivery of the Optional Shares, if not the First
Time of Delivery, being herein called the "Second Time of
Delivery," and each time and date for delivery is herein called a
"Time of Delivery". Delivery of the Shares shall be made to the
Representatives for the respective accounts of the several Under-
writers against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the
order of the Custodian, by certified or official bank check or
checks in the funds specified in Schedule I. Delivery of the
Shares shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance
of the Time of Delivery for such Shares and payment for the
Shares shall be made at the office specified in Schedule I
hereto. Certificates in definitive form for the Shares shall be
registered in such names and in such denominations as the
Representatives may request not less than three full business
days in advance of the Time of Delivery for such Shares.
Each of the Selling Stockholders agrees to have the
Firm Shares available for inspection, checking and packaging by
the Representatives in New York, New York, not later than 1:00 PM
on the business day prior to the First Time of Delivery. The
Company agrees to have the Optional Shares available for inspec-
tion, checking and packaging by the Representatives in New York,
New York, not later than 1:00 PM on the business day prior to the
Time of Delivery for such Shares.
5. Agreements. The Company agrees with the several
----------
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution
Time, and any amendment thereto, to become effective. Prior
to the termination of the offering of the Shares, the
Company will not file any amendment of the Registration
Statement or supplement to the Basic Prospectus (including
the Final Prospectus or any Preliminary Final Prospectus)
19
unless the Company has furnished to you a copy for your
prompt review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time
20
period prescribed and will provide evidence reasonably
satisfactory to the Representatives of such timely filing.
The Company will promptly advise the Representatives
(i) when the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus, and any supple-
ment thereto, shall have been filed with the Commission
pursuant to Rule 424(b), (iii) when, prior to termination of
the offering of the Shares, any amendment to the Registra-
tion Statement shall have been filed or become effective,
(iv) of any request by the Commission for any amendment of
the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institu-
tion or threatening of any proceeding for that purpose and
(vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threaten-
ing of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Shares is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein in the light of the circum-
stances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earning statement or statements of the
Company and its subsidiaries which will satisfy the provi-
sions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, copies of
the Registration Statement (including exhibits thereto) and,
so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and
any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing any
Agreement Among Underwriters, this Agreement, the Blue Sky
Memorandum and any other documents in connection with the
offering, purchase, sale and delivery of the Shares.
(e) Until the date set forth on Schedule I hereto,
except for securities issuable upon conversion of the
Company's 4 1/2% Convertible Subordinated Notes due July 1,
1997 or the issuance of shares or options pursuant to
employee benefit plans, the Company will not, without the
prior written consent of the Representatives, offer, sell or
contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any shares of Stock
or any security of the Company substantially similar
thereto, or any other security convertible into or
exchangeable for, or that represents the right to receive,
21
shares of Stock or any security substantially similar
thereto.
(f) Promptly from time to time to take such action as
you may reasonably request to qualify the Shares for offer-
ing and sale under the securities laws of such jurisdictions
as you may request and to comply with such laws so as to
permit the continuance of sales and
22
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares;
provided that in connection therewith the Company shall not
-------- ----
be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction.
(g) The Company will use its reasonable best efforts
to cause the Optional Shares to be duly authorized for
listing on the New York Stock Exchange.
6. Conditions to the Obligations of the Underwriters.
-------------------------------------------------
The obligations of the Underwriters, as to the Shares to be
delivered at each Time of Delivery, to purchase the Shares shall
be subject to the accuracy of the representations and warranties
on the part of the Company and of the Selling Stockholders
contained herein as of the Execution Time and such Time of
Delivery, to the accuracy of the statements of the Company and of
the Selling Stockholders made in any certificates pursuant to the
provisions hereof, to the performance by the Company and by each
of the Selling Stockholders of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives
agree in writing to a later time, the Registration Statement
will become effective not later than (i) 6:00 P.M. New York
City time, on the date of determination of the public
offering price, if such determination occurred at or prior
to 3:00 P.M. New York City time on such date or (ii) 12:00
Noon on the business day following the day on which the
public offering price was determined, if such determination
occurred after 3:00 P.M. New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus,
and any such supplement, shall have been filed in the manner
and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Underwriters
the opinion of Paul, Weiss, Rifkind, Wharton & Garrison
("Paul Weiss"), counsel for the Company, dated such Time of
Delivery, to the effect that:
(i) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by the
Company;
(ii) No consent, approval, authorization, order,
registration or qualification of or with any New York
or federal court or governmental agency or body is
required for the sale of the Shares or the consummation
by the Company of the transactions contemplated by the
Final Prospectus, this Agreement or the International
Underwriting Agreement, except such as have been
obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may
be required under state or foreign securities or Blue
Sky laws in connection with the purchase and distribu-
tion of the Shares by the Underwriters and the Inter-
national Underwriters;
(iii) Except as noted below, the last sentence of
the first paragraph, the first sentence of the second
paragraph and the entire third paragraph of the section
of the Final Prospectus relating to the Shares cap-
tioned "Certain Considerations -- Taxation of the
Company" contain a fair and accurate general descrip-
23
tion of the U.S. Federal tax provisions discussed
therein. With respect to the last sentence of the
first paragraph of the section of the Prospectus
relating to the Shares captioned "Certain Considera-
tions - Taxation of the Company," no opinion is
expressed with respect to whether the
24
exemption of Section 883 of the Internal Revenue Code
of 1986 is available or applicable to the Company or
any of its subsidiaries;
(iv) Assuming that New York law is applicable, upon
delivery of the Shares pursuant to this Agreement and
the International Underwriting Agreement and payment
therefor as contemplated herein and therein, good and
valid title to the Shares, free and clear of all liens,
encumbrances, equities or claims, shall be transferred
to each of the several Underwriters and International
Underwriters who purchase the Shares in good faith and
without notice of any lien, encumbrance, equity or
claim or any other adverse claim within the meaning of
the Uniform Commercial Code of the State of New York;
(v) The Company is not an "investment company" as such
term is defined in the Investment Company Act;
In addition, such counsel shall state that on the basis
of the participation of such counsel in conferences at
which the contents of the Registration Statement and
the Final Prospectus and related matters were
discussed, but without independent verification by such
counsel of the accuracy, completeness or fairness of
the statements contained in the Registration Statement,
the Final Prospectus, any amendment or supplement
thereto or any documents incorporated by reference in
the Final Prospectus or any amendment or supplement
thereto, that they have no knowledge that (other than
the financial statements, schedules and other financial
or statistical data which are or should be contained
therein, as to which such counsel need express no
statement):
(1) The documents incorporated by reference in the
Final Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of
Delivery, when they became effective or were filed with
the Commission, as the case may be, (A) did not comply
as to form in all material respects with the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder; and (B) contained in the case of
a registration statement which became effective under
the Act, an untrue statement of a material fact, or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or, in the case of other documents which
were filed under the Exchange Act with the Commission,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading;
(2) (A) The Registration Statement and the Final
Prospectus and any further amendment and supplements
thereto made by the Company prior to such Time of
Delivery did not comply as to form in all material
respects with the requirements of the Act and the rules
and regulations thereunder; (B) as of their respective
effective dates, the Registration Statement or any
further amendment thereto made by the Company prior to
such Time of Delivery contained an untrue statement of
a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that, as of its
date, the Final Prospectus or any further amendment or
25
supplement thereto made by the Company prior to such
Time of Delivery contained an untrue statement of a
material fact or omitted to state a material fact
necessary to make the statements therein, in the light
of the circumstances in which they were made, not
misleading or that, as of such Time of
26
Delivery, either the Registration Statement or the
Final Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of
Delivery contains an untrue statement of a material
fact or omits to state a material fact necessary to
make the statements therein, in light of the
circumstances in which they were made, not misleading;
and (C) any amendment to the Registration Statement
required to be filed with the Commission or of any
contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Final
Prospectus or required to be described in the Regis-
tration Statement or the Final Prospectus which are not
filed or incorporated by reference or described as
required.
(c) The Company shall have furnished to the Underwriters
the opinion of Alan R. Twaits, Esq., General Counsel for the
Company, dated such Time of Delivery, to the effect that:
(i) To the knowledge of such counsel, the Company has
all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and
declarations and filings with, all federal, state,
local and other governmental authorities, to own,
lease, license, and use its properties and assets and
to conduct its business in the manner described in the
Final Prospectus (except for such consents, authori-
zations, approvals, orders, licenses, certificates,
permits, declarations and filings, which the failure to
have obtained, individually or in the aggregate, does
not and can reasonably be expected in the future not to
have a material adverse effect on the general affairs,
business, financial position, shareholders' equity or
results of operations of the Company and its subsidi-
aries, taken as a whole);
(ii) To the knowledge of such counsel, HAL Antillen
N.V. ("HAL") has all necessary consents,
authorizations, approvals, orders, certificates and
permits of and from, and declarations and filings with,
all federal, state, local, and other governmental
authorities, to own, lease, license, and use its
properties and assets and to conduct its business in
the manner described in the Final Prospectus (except
for such consents, authorizations, approvals, orders,
licenses, certificates, permits, declarations and
filings, which the failure to have obtained, individu-
ally or in the aggregate, does not, and can reasonably
be expected in the future not to, have a material
adverse effect on the general affairs, business, finan-
cial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken
as a whole);
(iii) Each of the Subsidiaries has been duly quali-
fied as a foreign corporation for the transaction of
business and is in good standing under the laws of each
other jurisdiction in which it owns or leases proper-
ties, or conducts any business which requires such
qualification (except where the failure to be so
qualified or in good standing does not, and can
reasonably be expected in the future not to, have a
material adverse effect upon the general affairs,
business, financial position, shareholders' equity or
results of operations of the Company and its subsidi-
aries, taken as a whole);
27
(iv) To the knowledge of such counsel, except as set
forth in Schedule III to this Agreement, all of the
issued shares of capital stock of each Subsidiary are
owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, security interests or
claims;
(v) To the knowledge of such counsel, and other than
as set forth in the Final Prospectus, there are no
legal or governmental proceedings pending to which the
28
Company or any of its Subsidiaries is a party or of
which any property of the Company or any of its Sub-
sidiaries is the subject which, could reasonably be
expected to individually or in the aggregate have a
material adverse effect on the general affairs,
business, financial position, shareholders' equity or
results of operations of the Company and its
subsidiaries, taken as a whole; and, to the knowledge
of such counsel, no such proceedings are threatened or
contemplated by governmental authorities or threatened
by others;
(vi) To the knowledge of such counsel, the compliance
by the Company with all of the provisions this
Agreement and the International Underwriting Agreement
and the consummation of the transactions herein and
therein contemplated will not conflict with or result
in a breach or violation of any of the terms or
provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to
such counsel to which the Company or any of the
Subsidiaries is a party or by which the Company or any
of the Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Sub-
sidiaries is subject, nor will such action result in
any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or, to the
knowledge of such counsel, any statute or any order,
rule or regulation binding on the Company or any of the
Subsidiaries or any of their properties;
(vii) To the knowledge of such counsel, the Company
is not (A) in violation of, or in default with respect
to, any law, rule, regulation, order, judgment or
decree, except as may be properly described in the
Final Prospectus or such as in the aggregate do not now
have, and can reasonably be expected in the future not
to have, a material adverse effect on the general
affairs, business, financial position, shareholders'
equity or results of operations of the Company and the
Subsidiaries, taken as a whole; nor is the Company
required to take any action in order to avoid any such
violation or default; (B) in violation or breach of, or
in default with respect to, complying with any material
provision of any contract, agreement, instrument,
lease, license, arrangement or understanding which is
material to the Company and its Subsidiaries, taken as
a whole; or (C) in violation or breach of, or in
default with respect to, any term of its certificate of
incorporation (or other charter document) or by-laws;
(viii) The Company, directly or indirectly, holds
good and marketable title to each of the vessels listed
on Schedule IV hereto, subject only to the liens dis-
closed on Schedule IV and maritime liens in the
ordinary course of business;
(d) The Company shall have furnished to the Underwriters
the opinion of Tapia Linares y Alfaro, Panamanian counsel
for the Company, dated such Time of Delivery, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the Republic of Panama, with power
and authority (corporate and other) to own, lease,
license and use its properties and conduct its business
as described in the Final Prospectus;
29
(ii) This Agreement and the International Underwriting
Agreement have been duly authorized by the Company;
(iii) No consent, approval, authorization, order,
registration or qualification of or with any Panamanian
court or governmental agency or body is required for
the sale of
30
the Shares, or the consummation by the Company of the
transactions contemplated by this Agreement and the
International Underwriting Agreement, except such as
have been obtained under the Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the
Underwriters and the International Underwriters;
(iv) The Company has an authorized capitalization as
set forth or incorporated by reference in the Final
Prospectus, and all of the issued shares of capital
stock of the Company including the Shares being
delivered at such Time of Delivery have been duly and
validly authorized and issued and are fully paid and
non-assessable; and
(v) To the knowledge of such counsel, the Company is
not in violation of, or in default with respect to, any
law, rule, regulation, order, judgment or decree,
except as may be properly described in the Final
Prospectus or such as in the aggregate do not now have,
and can reasonably be expected in the future not to
have, a material adverse effect on the general affairs,
business, financial position, shareholders' equity or
results of operations of the Company and the
Subsidiaries, taken as a whole.
(vi) The Stock conforms in all material respects to the
description of the Stock incorporated by reference into
the Final Prospectus.
(vii) Good and valid title to the Shares, free and
clear of all liens, encumbrances, equities or claims,
has been transferred to each of the several Under-
writers or International Underwriters, as the case may
be, who purchase the Shares in good faith and without
notice of any such lien, encumbrance, equity or claim
or any other adverse claim.
(e) The Company shall have furnished to the Representatives
the opinion of Clifford Chance, counsel to HAL, dated such
Time of Delivery, to the effect that:
(i) HAL is a "naamloze vennootschap" (company with
limited liability) duly organized and validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and
authority (corporate and other) to own, lease, license
and use its properties and conduct its business as
described in the Final Prospectus; and
(ii) All of the issued shares of capital stock of HAL
have been duly and validly authorized and issued, and
are fully paid.
(f) The Company shall have furnished to the Underwriters
the opinions of local counsel, each dated such Time of
Delivery, to the effect that each vessel listed on Schedule
IV hereto is duly registered, except as noted on Schedule
IV, under the laws of the jurisdiction listed opposite its
name on Schedule IV.
Each such opinion described in 6(b), (c), (d), (e) and
(f) above shall be in form and substance reasonably satis-
factory to the Representatives. In rendering such opinions
described in 6(b), (c), (d), (e) and (f) above, each such
counsel may rely (A) as to matters involving the application
31
of laws other than the laws of the jurisdiction in which
such counsel practices, to the extent such counsel deems
proper and to the extent specified in such opinion, upon an
opinion or opinions (in form and substance reasonably
satisfactory to counsel for the
32
Underwriters) of other counsel, reasonably acceptable to
counsel for the Underwriters, familiar with the applicable
laws; (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the
Company or of any of the Subsidiaries; and (C) to the extent
such counsel deems proper, upon written statements or
certificates of officers of departments of various
jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company or of
any of the Subsidiaries, provided that copies of any such
statements or certificates shall be delivered to counsel for
the Underwriters, and on the absence of a telegram from the
Commission. References to the Final Prospectus in
paragraphs 6(b) through (e) include any amendments or
supplements thereto filed prior to such Time of Delivery.
(g) The respective counsel for each of the Selling
Stockholders, as indicated in Schedule V hereto, each shall
have furnished to you their written opinion with respect to
each of the Selling Stockholders for whom they are acting as
counsel, dated the First Time of Delivery, in form and sub-
stance reasonably satisfactory to you, to the effect that:
(i) A Power of Attorney and a Custody Agreement have
been duly executed and delivered by such Selling
Stockholder and constitute valid and binding agreements
of such Selling Stockholder in accordance with their
terms;
(ii) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by or
on behalf of such Selling Stockholder; and the sale of
the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling
Stockholder with all of the provisions of this Agree-
ment and the International Underwriting Agreement, the
Power-of-Attorney and the Custody Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a
breach or violation of any terms or provisions of, or
constitute a default under, any statute, indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which
such Selling Stockholder is a party or by which such
Selling Stockholder is bound or to which any of the
property or assets of such Selling Stockholder is
subject, nor will such action result in any violation
of the provisions of the Articles of Incorporation, By-
laws, governing trust indenture or other governing
instrument, as the case may be, of such Selling Stock-
holder or any order, rule or regulation known to such
counsel of any court or governmental agency or body
having jurisdiction over such Selling Stockholder or
the property of such Selling Stockholder;
(iii) No consent, approval, authorization or order of
any court or governmental agency or body is required
for the consummation of the transactions contemplated
by this Agreement and the International Underwriting
Agreement in connection with the Shares to be sold by
such Selling Stockholder hereunder, except such
consent, approvals, authorizations or orders which have
been duly obtained and are in full force and effect,
such as have been obtained under the Act and such as
may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of
such Shares by the Underwriters or the International
Underwriters;
33
(h) Holland & Knight, special U.S. counsel to the Selling
Stockholders, shall have furnished to you their written
opinion, dated the First Time of Delivery, in form and
substance reasonably satisfactory to you, to the effect
that:
34
(i) Immediately prior to the First Time of Delivery,
each Selling Stockholder had good and valid title to
the Shares to be sold at the First Time of Delivery by
such Selling Stockholder under this Agreement and the
International Underwriting Agreement, free and clear of
all liens, encumbrances, equities or claims, and full
right, power and authority to sell, assign, transfer
and deliver the Shares to be sold by such Selling
Stockholder hereunder and thereunder; and
(ii) Good and valid title to such Shares, free and
clear of all liens, encumbrances, equities or claims,
has been transferred to each of the several
Underwriters or International Underwriters, as the case
may be, who have purchased such Shares in good faith
and without notice of any such lien, encumbrance,
equity or claim or any other adverse claim within the
meaning of the Uniform Commercial Code.
In rendering the opinion in paragraph (i), such
counsel may rely upon a certificate of such Selling
Stockholder in respect of matters of fact as to
ownership of, and liens, encumbrances, equities or
claims on, the Shares sold by such Selling Stockholder,
provided that such counsel shall state that they
--------
believe that both you and they are justified in relying
upon such certificate;
(i) The Underwriters shall have received from Sullivan &
Cromwell, counsel for the Underwriters, such opinion or
opinions, dated such Time of Delivery, with respect to the
validity of the Shares, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and
other related matters as the Underwriters may reasonably
require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(j) The Company shall have furnished to the Underwriters a
certificate of the Company, dated such Time of Delivery and
signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company,
and the Selling Stockholders shall have furnished to the
Underwriters at the First Time of Delivery certificates of
the Selling Stockholders, respectively, dated the First Time
of Delivery, satisfactory to you as to the accuracy of the
representations and warranties of the Company and the
Selling Stockholders, respectively, herein at and as of such
Time of Delivery as to the performance by the Company and
the Selling Stockholders of all of their respective
obligations hereunder to be performed at or prior to such
Time of Delivery and as to such other matters as you may
reasonably request and the Company shall have furnished or
caused to be furnished a certificate to the effect that the
signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplement
to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of such Time of Delivery with the
same effect as if made on such Time of Delivery and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to such Time of
Delivery;
35
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the most recent audited
financial statements included in the Final Prospectus
(exclusive of any supplement thereto), there has been
no material
36
adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(k) At such Time of Delivery, Price Waterhouse LLP shall
have furnished to the Underwriters a letter or letters
(which may refer to letters previously delivered to one or
more of the Representatives), dated as of such Time of
Delivery, in form and substance satisfactory to the Repre-
sentatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited financial statements
and schedules included or incorporated in the
Registration Statement and the Final Prospectus and
reported on by them comply in form in all material
respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and
its subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which could not
necessarily reveal matters of significance with respect
to the comments set forth in such letter, a reading of
the minutes of the meetings of the stockholders,
directors and executive and audit committees of the
Company and its subsidiaries; and inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent
to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus,
nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply
in form in all material respects with applicable
accounting requirements and with the published
rules and regulations of the Commission with
respect to financial statements included or
incorporated in quarterly reports on Form 10-Q
under the Exchange Act; and said unaudited
financial statements are not in conformity with
generally accepted accounting principles applied
on a basis substantially consistent with that of
the audited financial statements included or
incorporated in the Registration Statement and the
Final Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Final Prospectus, there were any
changes, at a specified date not more than five
business days prior to the date of the letter, in
the consolidated capital stock (other than issu-
ances of capital stock upon exercise of options
and stock appreciation rights, upon earn-outs of
37
performance shares and upon conversions of
convertible securities, in each case which were
outstanding on the date of the latest balance
sheet included or incorporated by reference in the
Final Prospectus) or any increase in the consoli-
dated long-term debt of the Company and its sub-
sidiaries, or any decreases in consolidated net
current
38
assets or net assets as compared with the amounts
shown on the most recent consolidated balance
sheet included or incorporated in the Registration
Statement and the Final Prospectus, or for the
period from the date of the most recent financial
statements included or incorporated in the
Registration Statement and the Final Prospectus to
such specified date there were any decreases, as
compared with the corresponding period in the
preceding year in consolidated net revenues,
operating income, net income or earnings per
share, except in all instances for changes or
decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation
by the Company as to the significance thereof
unless said explanation is not deemed necessary by
the Representatives; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in
the Registration Statement and the Final Prospec-
tus do not agree with the amounts set forth in the
unaudited financial statements for the same
periods or were not determined on a basis substan-
tially consistent with that of the corresponding
amounts in the audited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus.
(iii) they have performed certain other specified
procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company and its
subsidiaries which is subject to the Company's system
of internal accounting controls) set forth in the
Registration Statement and the Final Prospectus,
including the information included or incorporated in
Items 6, 7 and 11 of the Company's Annual Report on
Form 10-K, incorporated in the Registration Statement
and the Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form
10-Q, incorporated in the Registration Statement and
the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding
any questions of legal interpretation; and
(iv) if pro forma financial statements are included or
incorporated in the Registration Statement and the
Final Prospectus, on the basis of a reading of the
unaudited pro forma financial statements, carrying out
certain specified procedures, inquiries of certain
officials of the Company and the acquired company who
have responsibility for financial and accounting
matters, and proving the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the pro forma financial state-
ments, nothing came to their attention which caused
them to believe that the pro forma financial statements
do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts in
the compilation of such statements.
39
References to the Final Prospectus in this paragraph (i)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto,
at the Execution Time, Price Waterhouse LLP shall have
furnished to the Representatives a letter or letters, dated
as of the
40
Execution Time, in form and substance satisfactory to the
Representatives, to the effect set forth above.
(l) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto), there
shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (k) of this
Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the business or
properties of the Company and its subsidiaries, taken as a
whole, the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the reasonable judgment of
the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or
delivery of the Shares as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(m) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purpose of Rule 436(g) under
the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the
possible change.
(n) Prior to such Time of Delivery, the Company and the
Selling Stockholders shall have furnished to the Repre-
sentatives such further information, certificates and
documents as the Representatives may reasonably request.
(o) Prior to the Time of Delivery, the Optional Shares
shall have been duly authorized for listing by the New York
Stock Exchange subject only to official notice of issuance.
(p) On or after the date hereof there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material limita-
tion in trading in the Company's securities on the New York
Stock Exchange; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal or
New York State authorities; or (iv) the outbreak or escala-
tion of hostilities involving the United States or the
declaration by the United States of a national emergency or
war, if the effect of any such event specified in this
clause (iv) is in your reasonable judgment so material and
adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms
and in the manner contemplated by the Prospectus.
(q) The Representatives shall have received the
written agreement of each of Ted Arison and Micky Arison, in
form and substance satisfactory to the Representatives, to
the effect that, for a period of 90 days after the date of
the Final Prospectus, such person has agreed (i) not to
offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any
shares of Stock or Class B Common Stock of the Company
("Class B Common Stock") or any security of the Company
substantially similar thereto, or any other security
convertible into or exchangeable for, or that represents the
right to receive, shares of Stock or Class B Common Stock or
any security of the Company substantially similar thereto,
without the prior written consent of the Representatives and
41
(ii) not to consent to any disposition of the nature
described in clause (i) of this Section 6(q) by any trust
that owns shares of Stock or Class B Common Stock or any
security of the Company
42
substantially similar thereto, or any other security
convertible into or exchangeable for, or that represents the
right to receive, shares of Stock or Class B Common Stock or
any security of the Company substantially similar thereto,
over which such person has voting or dispositive power
without the prior written consent of the Representatives.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Under-
writers, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, such Time
of Delivery by the Representatives. Notice of such cancellation
shall be given to the Company and the Selling Stockholders in
writing or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the
----------------------------------------
sale of the Shares provided for herein is not consummated by
reason of any failure on the part of the Company or any Selling
Stockholder to perform any covenant or agreement or satisfy any
condition of this Agreement to be performed or satisfied by it or
any Selling Stockholder, the sole liability of the Company to
each of the Underwriters, in addition to the obligations of the
Company pursuant to Sections 5(d) and 8, will be for the Company
to reimburse the Underwriters for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares
not so delivered. Otherwise, if this Agreement shall be
terminated, the Company shall not then be under any liability to
any Underwriter except as provided in Sections 5(d) and 8 hereof.
If this Agreement shall be terminated as provided herein, the
Selling Stockholders shall not have any liability to the
Underwriters.
8. Indemnification and Contribution. (a) The Company
--------------------------------
agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and
each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the
registration of the Shares as originally filed or in any amend-
ment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indem-
nified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any
-------- -------
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue state-
ment or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclu-
sion therein; and, provided, further, that the Company will not
-------- -------
be liable to any Underwriter with respect to any loss, claim,
43
damage or liability arising out of or based on any untrue
statement or alleged untrue statement or omission or alleged
omission to state a material fact in the Preliminary Final
Prospectus which is corrected in the Final Prospectus if the
person asserting any such loss, claim, damage or liability
purchased Shares from such Underwriter but was not sent or given
a copy of the Final Prospectus at or prior to the written
confirmation of the sale of such Shares to such person. This
indemnity agreement will be in addition to any liability which
the Company may otherwise have.
44
(b) Each of the Selling Stockholders, severally in
proportion to the number of Shares to be sold by such Selling
Stockholder, and not jointly, agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statu-
tory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue state-
ment or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Shares as
originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in the registration statement for the registra-
tion of the Shares as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof
or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by such Selling
Stockholder expressly for use therein, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investi-
gating or defending any such loss, claim, damage, liability or
action; provided, however, that such Selling Stockholder will not
-------- -------
be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf
of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition
to any liability which the Selling Stockholders may otherwise
have.
(c) Each Underwriter severally agrees to indemnify and
hold harmless the Company and each Selling Stockholder, and each
of their respective directors and officers and each person who
controls the Company or such Selling Stockholder within the
meaning of either the Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Company or such Selling
Stockholder, as the case may be, to each Underwriter, but only
with reference to written information relating to such Under-
writer furnished to the Company by or on behalf of such Under-
writer through the Representatives specifically for inclusion in
the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have.
(d) Promptly after receipt by an indemnified party
under subsection (a), (b) or (c) above of notice of the commence-
ment of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
45
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly noti-
fied, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investi-
gation conducted by the Underwriters at the request of the
46
Company. Notwithstanding anything to the contrary contained
herein, an indemnifying party will not be liable for any settle-
ment of any claim or action effected without its prior written
consent.
(e) In the event that the indemnity provided in para-
graph (a), (b) or (c) of this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, then each indemnifying party agrees to contribute to the
aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which
an indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and by the
Underwriters on the other from the offering of the Shares. If
the allocation provided by the immediately preceding sentence is
unavailable for any reason or if the indemnified party failed to
give the notice required under subsection (d) above, then each
indemnifying party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Stockholders on
the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits
received by the Company and the Selling Stockholders on the one
hand shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses), and benefits received
by the Underwriters on the other hand shall be deemed to be equal
to the total underwriting discounts and commissions, in each case
as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by
the Company or the Selling Stockholders on the one hand or the
Underwriters on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission and the failure of an indemni-
fied party to give notice under subsection (d) above (to the
extent such failure is prejudicial to an indemnifying party).
The Company, each of the Selling Stockholders and the Under-
writers agree that it would not be just and equitable if contri-
bution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions
of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission
or alleged omission. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Sec-
tion 8, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who
controls the Company or any Selling Stockholder within the mean-
ing of either the Act or the Exchange Act, each officer of the
Company or any Selling Stockholder who shall have signed the
Registration Statement and each director of the Company or any
Selling Stockholder shall have the same rights to contribution as
the Company or any Selling Stockholder, as the case may be,
subject in each case to the applicable terms and conditions of
this paragraph (e).
47
9. Default by an Underwriter. If any one or more
--------------------------
Underwriters shall fail at a Time of Delivery to purchase and pay
for any of the Shares agreed to be purchased by such Underwriter
or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obliga-
tions under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective
proportions which the amount of Shares set forth opposite their
names in Schedule II hereto bears to the aggregate amount of
Shares set forth opposite the names of all the remaining Under-
writers) the Shares which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however,
-------- -------
that in the event that the aggregate amount of
48
Shares which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount
of Shares set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Shares, and if
such nondefaulting Underwriters do not purchase all the Shares,
this Agreement will terminate without liability to any
nondefaulting Underwriter, the Company or any Selling
Stockholder. In the event of a default by any Underwriter as set
forth in this Section 9, such Time of Delivery shall be postponed
for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company, any Selling Stockholder and
any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Representations and Indemnities to Survive. The
-------------------------------------------
respective agreements, representations, warranties, indemnities
and other statements of the Company, the Selling Stockholders or
their respective officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of
any Underwriter, any Selling Stockholder or the Company or any of
the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for
the Shares. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. In all dealings hereunder, you shall act
-------
on behalf of each of the Underwriters, and the parties hereto
shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by
you jointly or by Goldman, Sachs & Co. on behalf of you as the
Representatives; and in all dealings with any Selling Stockholder
hereunder, you and the Company shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of
such Selling Stockholder made or given by any or all of the
Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to the
Underwriters in care of Goldman, Sachs & Co., 85 Broad Street,
New York, New York, 10004, Attention: Registration Department, if
to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling
Stockholder at its address set forth in Schedule II hereto; and
if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: Legal Department;
provided, however, that any notice to an Underwriter pursuant to
Section 8(d) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company
or the Selling Stockholders by Goldman, Sachs & Co. upon request.
Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
12. Successors. This Agreement will inure to the
----------
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
49
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED
----------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
14. This Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same
instrument.
50
If the foregoing is in accordance with your understand-
ing of our agreement, please sign and return to us the eight
counterparts hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company, the
Selling Stockholders and the several Underwriters.
Very truly yours,
Carnival Corporation.
By:
--------------------------------
Name:
Title:
Cititrust (Jersey) Limited,
as trustee of The Ted Arison
1994 Cash Trust
The Royal Bank of Scotland Trust
Company
(Jersey) Limited, as trustee
for The Ted Arison 1992
Irrevocable Trust for Micky
The Royal Bank of Scotland Trust
Company
(Jersey) Limited, as trustee
for The Ted Arison 1992
Irrevocable Trust for Shari
The Royal Bank of Scotland Trust
Company
(Jersey) Limited, as trustee
for The Ted Arison 1992
Irrevocable Trust for Lin No.
2
By:
--------------------------------
Name:
Title:
As Attorney-in-Fact acting on
behalf of each of the Selling
Stockholders named in Schedule
V to this Agreement.
Accepted as of the date hereof at
New York, New York:
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
By:_______________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
51
SCHEDULE I
Underwriting Agreement dated ...................., 1995
Registration Statement No. 33-58151
Representative(s): Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Merrill Lynch, Pierce Fenner & Smith Incorporated
Title, Purchase Price and Description of Shares:
Title: Class A Common Stock, par value $.01 per share
Number of shares: 11,040,000
Maximum number of shares of Optional Shares to cover
overallotments: 1,656,000
Purchase price per share:
Closing Date, Time and Location: ................., 1995,
9:30 a.m., Sullivan & Cromwell, 125 Broad Street, New York, New
York
Specified Funds for Payment of Purchase Price: next-day funds
Type of Offering: Non-Delayed Offering
Date referred to in Section 5(e) after which the Company may
offer or sell shares of Class A Common Stock or securities
described in Section 5(e) without the consent of the
Representatives: ninety (90) days after the date of the
Underwriting Agreement.
Modification of items to be covered by the letter from Price
Waterhouse LLP delivered pursuant to Section 6(k) at the
Execution Time: None
1
SCHEDULE II
Total Number
of Firm Total Number
Underwriters Shares of Optional
------------
to be Shares to be
Purchased Purchased
from the from the
---
Selling Company
------- -------
Stockholders
------------
Goldman, Sachs & Co. . . . . . . .
Bear, Stearns & Co. Inc. . . . . .
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated . . . . . . . . .
Total . . . . . . . . . . . . . . . 11,040,000 1,656,000
========== =========
SCHEDULE III
Capital
Stock
Subsidiary Ownership
---------- ---------
Carnival Corporation ("CCL") . . . . . . . . . . . _____
HAL Antillen N.V. ("HAL") . . . . . . . . . . . . . CCL1/
-
Sunbury Assets Limited . . . . . . . . . . . . . . CCL
Festivale Maritime Limited . . . . . . . . . . . . CCL
Celebration Cruises Inc. . . . . . . . . . . . . . CCL
Tropicale Cruises Inc. . . . . . . . . . . . . . . CCL
Jubilee Cruises Inc. . . . . . . . . . . . . . . . CCL
HAL Shipping Ltd. . . . . . . . . . . . . . . . . . HAL
Wind Surf Limited . . . . . . . . . . . . . . . . . HAL
Windstar Limited . . . . . . . . . . . . . . . . . WSCL
Wind Spirit Limited . . . . . . . . . . . . . . . . WSCL
Windstar Sail Cruises Limited ("WSCL") . . . . . HAL
Futura Cruises, Inc. . . . . . . . . . . . . . . . CCL1/
-
--------------------
1/ The shares owned by CCL are subject to a pledge in
-
favor of Citibank, N.A.
1
SCHEDULE IV
Jurisdiction of
Vessels Registration Liens
------- --------------- -----
I. Carnival Cruise Lines
1. Celebration . . Liberia First Preferred ShipMortgage
in favor of the Swedish
National Dept Office.
2. Jubilee . . . . Liberia None.
3. Tropicale . . . Liberia None.
4. Fantasy . . . . Liberia First PreferredShip Mortgage
of Finnish Export Credit
Limited.
5. Festivale . . . Bahamas None.
6. Holiday . . . . Bahamas None.
7. Ecstasy . . . . Liberia First PreferredShip Mortgage
in favor of Finnish Export
Credit Limited.
8. Sensation . . Panama None.
9. Fascination . . Panama None.
II. Holland America Line
1. Westerdam . . . Bahamas Mortgage in favor of
Kreditanstalt fur
Wiederaufbau.
2. Noordam . . . . Netherlands None.
Antilles
3. Nieuw Amsterdam Netherlands None.
Antilles
4. Rotterdam . . . Netherlands None.
Antilles
5. Statendam . . . Bahamas None.
6. Maasdam . . . . Bahamas None.
7. Ryndam . . . . Bahamas None.
1
III. Windstar Sail Cruises
1. Wind Spirit . . Bahamas Mortgage in favor of Banque
Francaise du Commerce
Exterieur ("BFCE") and
mortgage in favor of Banque
Nationale de Paris.
2. Wind Song . . . Bahamas Mortgage in favor of BFCE.
3. Wind Star . . . Bahamas Mortgage in favor of BFCE.
2
SCHEDULE V
Total Number of
Shares
to be sold
----------
The Selling Stockholders(a):
Cititrust (Jersey) Limited,
as trustee of The Ted Arison 1994 Cash Trust . . . . 6,400,000
The Royal Bank of Scotland Trust Company
(Jersey) Limited, as trustee for The
Ted Arison 1992 Irrevocable Trust for
Micky (b) . . . . . . . . . . . . . . . . . . . . . 1,600,000
The Royal Bank of Scotland Trust Company
(Jersey) Limited, as trustee for The
Ted Arison 1992 Irrevocable Trust for
Shari (c) . . . . . . . . . . . . . . . . . . . . . 1,440,000
The Royal Bank of Scotland Trust Company
(Jersey) Limited, as trustee for The
Ted Arison 1992 Irrevocable Trust for
Lin No. 2 (d) . . . . . . . . . . . . . . . . . . . 1,600,000
_________
Total . . . . . . . . . . . . . . . . . . . . . . . . 11,040,000
----------
3
Exhibit 1(b)
Carnival Corporation
Class A Common Stock
(par value $.01 per Share)
Underwriting Agreement
(International Version)
-----------------------
..........................., 1995
Goldman Sachs International,
Bear, Stearns International Limited,
Merrill Lynch International Limited,
As representatives of the several Underwriters
named in Schedule II hereto,
c/o Goldman Sachs International,
Peterborough Court,
133 Fleet Street,
London EC4A 2BB,
England.
Ladies and Gentlemen:
Certain stockholders named in Schedule III hereto (the "Selling
Stockholders") of Carnival Corporation, a company incorporated under the Laws of
the Republic of Panama (the "Company"), propose, subject to the terms and
conditions stated herein, to sell to the Underwriters named in Schedule II
hereto (the "Underwriters") for whom you are acting as representatives (the
"Representatives"), the aggregate number of shares of the Company's Class A
Common Stock, par value $.01 per share ("Stock"), identified in Schedule I
hereto.
The Company also grants to the Underwriters, severally and not jointly, the
right to purchase at their election in the aggregate all or any part of the
number of additional shares (the "Optional Shares"), set forth in Schedule I, to
cover over-allotments. The Firm Shares, together with all or any part of the
Optional Shares, are collectively herein called the "Shares".
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement, a copy of
which is attached hereto (the "U.S. Underwriting Agreement"), providing for the
sale by the Selling Stockholders of up to a total of 12,696,000 shares of Stock
(the "U.S. Shares"), including the overallotment option thereunder, through
arrangements with certain underwriters in the United States (the
"U.S. Underwriters"), for whom Goldman, Sachs & Co., Bear, Stearns & Co. Inc.
and Merrill Lynch, Pierce, Fenner & Smith Incorporated are acting as
representatives. Anything herein or therein to the contrary notwithstanding,
the respective closings
125_LAN04\154072.5
under this Agreement and the U.S. Underwriting Agreement are hereby expressly
made conditional on one another. The Underwriters hereunder and the
U.S. Underwriters are simultaneously entering into an Agreement between U.S. and
International Underwriting Syndicates (the "Agreement between Syndicates") which
provides, among other things, for the transfer of shares of Stock between the
two syndicates and for consultation by the Lead Managers hereunder with Goldman,
Sachs & Co. prior to exercising the rights of the Underwriters under Section 9
hereof. Two forms of prospectus are to be used in connection with the offering
and sale of shares of Stock contemplated by the foregoing, one relating to the
Shares hereunder and the other relating to the U.S. Shares. The latter form of
prospectus will be identical to the former except for certain substitute pages
as included in the registration statement and amendments thereto as mentioned
below. Except as used in Sections 2, 3, 4, 9 and 11 herein, and except as
context may otherwise require, references hereinafter to the Shares shall
include all of the shares of Stock which may be sold pursuant to either this
Agreement or the U.S. Underwriting Agreement, and references herein to any
prospectus whether in preliminary or final form, and whether as amended or
supplemented, shall include both the U.S. and the international versions
thereof.
In addition, this Agreement incorporates by reference certain provisions
from the U.S. Underwriting Agreement (including the related definitions of
terms, which are also used elsewhere herein) and, for purposes of applying the
same, references (whether in these precise words or their equivalent) in the
incorporated provisions to the "Underwriters" shall be to the Underwriters
hereunder, to the "Shares" shall be to the Shares hereunder as just defined, to
"this Agreement" (meaning therein the U.S. Underwriting Agreement) shall be to
this Agreement (except where this Agreement is already referred to or as the
context may otherwise require) and to the representatives of the Underwriters or
to Goldman, Sachs & Co. shall be to the addressees of this Agreement and to
Goldman Sachs International ("GSI"), and, in general, all such provisions and
defined terms shall be applied mutatis mutandis as if the incorporated
provisions were set forth in full herein having regard to their context in this
Agreement as opposed to the U.S. Underwriting Agreement.
1. The Company and each of the several Selling Stockholders hereby make
to the Underwriters the same respective representations, warranties and
agreements as are set forth in Section 1 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
2. Subject to the terms and conditions herein set forth and in reliance
upon the representations and warranties incorporated by reference herein, (a)
each of the Selling Stockholders agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from each of the
Selling Stockholders, at a purchase price per share as set forth in Schedule I
hereto, the number of Firm Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number of Firm Shares
to be sold by each of the Selling Stockholders as set forth opposite their
respective names in Schedule III hereto by a fraction, the numerator of which is
the aggregate number of Firm Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule II hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from all of the Selling Stockholders hereunder and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares, the Company agrees to sell to each Underwriter, and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price per share as set forth in Schedule I hereto, that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares) as
set forth opposite the name of such Underwriters in Schedule II hereto. Any
such election to purchase Optional Shares may be exercised only by written
notice from you to the Company, given within a period of 30 calendar days after
the Execution Time and setting forth the aggregate number of Optional Shares to
be purchased and the date on which such Optional Shares are to be delivered, as
determined by you but
125_LAN04\154072.5 2
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by GSI of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Final Prospectus and in the forms of Agreement
among Underwriters (International Version) and Selling Agreements, which have
been previously submitted to the Company by you. Each Underwriter hereby makes
to and with the Company and the Selling Stockholders the representations and
agreements of such Underwriter as a member of the selling group contained in
Sections 3(d) and 3(e) of the form of Selling Agreements.
4. Delivery of and payment for the Firm Shares shall be made on the date
and at the time specified in Schedule I hereto, which date and time may be
postponed by agreement between the Representatives and the Selling Stockholders
as provided in Section 9 hereof (such date and time of delivery and payment for
the Firm Shares being herein called the "First Time of Delivery"). Delivery of
and payment for the Optional Shares shall be on the date and at the time
specified by you in the written notice given by you of the Underwriters'
election to purchase the Optional Shares, or at such other time and date as you
and the Company may agree upon in writing. Such date and time of delivery of
the Optional Shares, if not the First Time of Delivery, being herein called the
"Second Time of Delivery," and each time and date for delivery is herein called
a "Time of Delivery". Delivery of the Shares shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Custodian, by certified or official
bank check or checks in the funds specified in Schedule I. Delivery of the
Shares shall be made at such location as the Representatives shall reasonably
designate at least one business day in advance of the Time of Delivery for such
Shares and payment for the Shares shall be made at the office specified in
Schedule I hereto. Certificates in definitive form for the Shares shall be
registered in such names and in such denominations as the Representatives may
request not less than three full business days in advance of the Time of
Delivery for such Shares.
Each of the Selling Stockholders agrees to have the Firm Shares available
for inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 PM on the business day prior to the First Time of
Delivery. The Company agrees to have the Optional Shares available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 PM on the business day prior to the Time of Delivery for
such Shares.
5. The Company hereby makes with the Underwriters the same agreements as
are set forth in Section 5 of the U.S. Underwriting Agreement, which Section is
incorporated herein by this reference.
6. Subject to the provisions of the Agreement between Syndicates, the
obligations of the Underwriters, as to the Shares to be delivered at each Time
of Delivery, to purchase the Shares shall be subject to the condition that all
representations and warranties and other statements of the Company and the
Selling Stockholders herein are, at and as of such Time of Delivery, true and
correct, the condition that the Company and the Selling Stockholders shall have
performed all of their respective obligations hereunder theretofore to be
performed, and additional conditions identical to those set forth in Section 6
of the U.S. Underwriting Agreement, which Section is incorporated herein by this
reference.
125_LAN04\154072.5 3
7. If the sale of the Shares provided for herein is not consummated by
reason of any failure on the part of the Company or any Selling Stockholder to
perform any covenant or agreement or satisfy any condition of this Agreement to
be performed or satisfied by it or any Selling Stockholder, the sole liability
of the Company or any Selling Stockholder to each of the Underwriters, in
addition to the obligations of the Company pursuant to Section 5(d) to the
Underwriting Agreement and Section 8 hereof, will be for the Company to
reimburse the Underwriters for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered. Otherwise, if this Agreement shall be terminated, the
Company shall not then be under any liability to any Underwriter except as
provided in Section 5(d) of the U.S. Underwriting Agreement and Section 8
hereof.
8. (a) The Company agrees to indemnify and hold harmless each Under-
writer, the directors, officers, employees and agents of each Underwriter and
each person who controls any Underwriter within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Shares as originally filed or
in any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and agrees to reimburse each such indem-
nified party, as incurred, for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
-------- -------
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion
therein; and, provided, further, that the Company will not be liable to any
-------- -------
Underwriter with respect to any loss, claim, damage or liability arising out of
or based on any untrue statement or alleged untrue statement or omission or
alleged omission to state a material fact in the Preliminary Final Prospectus
which is corrected in the Final Prospectus if the person asserting any such
loss, claim, damage or liability purchased Shares from such Underwriter but was
not sent or given a copy of the Final Prospectus at or prior to the written
confirmation of the sale of such Shares to such person. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each of the Selling Stockholders, severally in proportion to the
number of Shares to be sold by such Selling Stockholder, and not jointly, agrees
to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any Under-
writer within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Shares as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
125_LAN04\154072.5 4
statement or alleged untrue statement or omission or alleged omission was made
in the registration statement for the registration of the Shares as originally
filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use therein,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
--------
however, that such Selling Stockholder will not be liable in any such case to
- -------
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Selling Stockholders
may otherwise have.
(c) Each Underwriter severally agrees to indemnify and hold harmless
the Company and each Selling Stockholder, and each of their respective directors
and officers and each person who controls the Company or such Selling
Stockholder within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company or such Selling Stock-
holder, as the case may be, to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation conducted by
the Underwriters at the request of the Company. Notwithstanding anything to the
contrary contained herein, an indemnifying party will not be liable for any
settlement of any claim or action effected without its prior written consent.
(e) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each indemnifying party agrees to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which an indemnified party may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders on the one hand and by the
Underwriters on the other from the offering of the Shares. If the allocation
provided by the immediately preceding sentence is unavailable for any reason or
if the indemnified party failed to give the notice required under subsection (d)
above, then each indemnifying party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
125_LAN04\154072.5 5
relative fault of the Company and the Selling Stockholders on the one hand and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable considera-
tions. Benefits received by the Company and the Selling Stockholders on the one
hand shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses), and benefits received by the Underwriters on the
other hand shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
Company or the Selling Stockholders on the one hand or the Underwriters on the
other, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission and the failure of
an indemnified party to give notice under subsection (d) above (to the extent
such failure is prejudicial to an indemnifying party). The Company, each of the
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. Notwithstanding the
provisions of this paragraph (e), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company or any Selling Shareholder within the meaning of either the Act or the
Exchange Act, each officer of the Company or any Selling Shareholder who shall
have signed the Registration Statement and each director of the Company or any
Selling Shareholder shall have the same rights to contribution as the Company or
any Selling Stockholder, as the case may be, subject in each case to the
applicable terms and conditions of this paragraph (e).
9. If any one or more Underwriters shall fail at a Time of Delivery to
purchase and pay for any of the Shares agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Shares set forth
opposite their names in Schedule II hereto bears to the aggregate amount of
Shares set forth opposite the names of all the remaining Underwriters) the
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
-------- -------
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Shares set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Shares, and
if such nondefaulting Underwriters do not purchase all the Shares, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Company or any Selling Stockholder. In the event of a default by any
Underwriter as set forth in this Section 9, such Time of Delivery shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration Statement
and the Final Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company, any Selling Stockholder
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
125_LAN04\154072.5 6
10. The respective agreements, representations, warranties,
indemnities and other statements of the Company, the Selling Stockholders or
their respective officers and of the Underwriters set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, any Selling Stockholder
or the Company or any of the officers, directors or controlling persons referred
to in Section 8 hereof, and will survive delivery of and payment for the Shares.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by GSI on behalf of you as the Representatives; and in
all dealings with any Selling Stockholder hereunder, you and the Company shall
be entitled to act and rely upon any statement, request, notice or agreement on
behalf of such Selling Stockholder made or given by any or all of the
Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Underwriters in care of GSI, Peterborough Court,
133 Fleet Street, London EC4A 2BB, England, Attention: Equity Capital Markets,
Telex No. 94012165, facsimile transmission No. (071) 774-1550; if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to counsel for such Selling Stockholder at its address set forth in Schedule II
hereto; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Stockholders by GSI upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
12. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
13. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
14. This Agreement may be executed by any one or more parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
125_LAN04\154072.5 7
If the foregoing is in accordance with your understanding, please sign and
return to us 10 counterparts hereof, and whereupon this letter and your
acceptance shall represent a binding agreement among the Company, the Selling
Stockholders and the several Underwriters.
Very truly yours,
Carnival Corporation
By:....................................................
...
Name:
Title:
Cititrust (Jersey) Limited,
as trustee of the Ted Arison 1994 Cash Trust
The Royal Bank of Scotland Trust Company
(Jersey) Limited, as trustee for the Ted
Arison 1992 Irrevocable Trust for Micky
The Royal Bank of Scotland Trust Company
(Jersey) Limited, as trustee for the Ted
Arison 1992 Irrevocable Trust for Shari
The Royal Bank of Scotland Trust Company
(Jersey) Limited, as trustee for the Ted
Arison 1992 Irrevocable Trust for Lin No. 2
By:...............................................
.........
Name:
Title:
As Attorney-in-Fact acting on behalf of each of
the Selling Stockholders named in Schedule II to
this Agreement.
Accepted as of the date hereof at
New York, New York:
Goldman Sachs International
Bear, Stearns International Limited
Merrill Lynch International Limited
By: Goldman Sachs International
By:.....................................................
(Attorney-in-fact)
On behalf of each of the Underwriters
125_LAN04\154072.5 8
SCHEDULE I
Underwriting Agreement dated ...................., 1995
Registration Statement No. 33-58151
Representatives: Goldman Sachs International
Bear, Stearns International Limited
Merrill Lynch International Limited
Title, Purchase Price and Description of Shares:
Title: Class A Common Stock, par value $.01 per share
Number of shares: 2,760,000
Maximum number of shares of Optional Shares to cover overallotments:
414,000
Purchase price per share:
Closing Date, Time and Location: ..........................., 1995, 9:30 a.m.,
Sullivan & Cromwell, 125 Broad Street, New York, New York
Specified Funds for Payment of Purchase Price: next-day funds
Type of Offering: Non-Delayed Offering
Date referred to in Section 5(e) of the U.S. Underwriting Agreement after which
the Company may offer or sell shares of Class A Common Stock or securities
described in Section 5(e) without the consent of the Representatives: ninety
(90) days after the date of the Underwriting Agreement.
Modification of items to be covered by the letter from Price Waterhouse LLP
delivered pursuant to Section 6(k) of the U.S. Underwriting Agreement at the
Execution Time: None
125_LAN04\154072.5 1
SCHEDULE II
Number of
Firm Shares Number of
to be Optional Shares
Purchased to be Purchased
from the from the Company
Selling if Maximum Option
------- ------
Underwriter Stockholders Exercised
----------- ------------ ---------
Goldman, Sachs International
Bear, Stearns International
Limited . . . . . . . . . . .
Merrill Lynch International
Limited . . . . . . . . . . .
___________ ___________
Total . . . . . . . . . 2,760,000 414,000
========= =======
125_LAN04\154072.5
SCHEDULE III
Total Number
of Firm
Shares to be
Sold
The Selling Stockholders:
Cititrust (Jersey) Limited, as
trustee of The Ted Arison 1994
Cash Trust (a) . . . . . . . . . . 1,600,000
The Royal Bank of Scotland
Trust Company (Jersey)
Limited, as trustee for The
Ted Arison 1992 Irrevocable
Trust for Micky (b) . . . . . . . . 400,000
The Royal Bank of Scotland
Trust Company (Jersey)
Limited, as trustee for The
Ted Arison 1992 Irrevocable
Trust for Shari (c) . . . . . . . 360,000
The Royal Bank of Scotland
Trust Company (Jersey)
Limited, as trustee for The
Ted Arison 1992 Irrevocable
Trust for Lin No. 2 (d) . . . . . 4,000,000
Total . . . . . . . . . . . . 2,760,000
=========
125_LAN04\154072.5 3
EXHIBIT 5
April 12, 1995
Messrs.
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178-2428
U.S.A.
Registration Statement on Form S-3
Registration No. 33-58151
-------------------------
Dear Sirs:
In connection with the above-captioned Registration Statement on Form S-3
(the "Registration Statement") filed by Carnival Corporation (the "Company")
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended (the "Act") and the rules and regulations promulgated
thereunder (the "Rules"), we have been requested to render our opinion as to
the legality of the securities being registered thereunder. The Registration
Statement covers 15,870,000 shares of the Company's Class A Common Stock par
value of $0.01 per share (the "Class A Common Stock"), of which 13,800,000
shares are being sold by certain selling shareholders (the "Secondary
Shares") and 2,070,000 are being sold by the Company (the "Over-allotment
Shares") pursuant to the over-allotment option.
In this connection, we have examined (i) originals, photocopies or conformed
copies of the Registration Statement, including exhibits and amendments
thereto, (ii) the Amended and Restated Articles of Incorporation and By-Laws
of the Company, each as amended to date, and (iii) records of certain of the
Company's corporate proceedings. In addition, we have made such other
examinations of law and fact as we have considered necessary in order to form
a basis of the opinions hereinafter expressed. In connection with such
investigation, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and
the conformity to originals of all documents submitted to us as photocopies
or conformed copies. We have relied as to matters of fact upon certificates
of officers of the Company.
Based on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing as a corporation
in good standing under the laws of the Republic of Panama.
2. The Secondary Shares have been duly authorized and validly issued and
are fully paid and nonassessable.
3. The Over-allotment Shares have been duly and legally authorized for
issuance, and such Over-allotment Shares, when issued and delivered by the
Company on the terms and conditions described in the Registration Statement
and paid for in accordance with the terms and provisions of the U.S.
Underwriting Agreement and the International Underwriting Agreement (as such
terms are defined in the Registration Statement), will be validly issued,
fully paid and nonassessable.
Distributions to the holders of the Secondary Shares and the Over-allotment
Shares will not be subject to taxation under the laws of the Republic of
Panama. Also, the Company's income will not be subject to significant
taxation under the laws of the Republic of Panama.
We are members of the Bar of the Republic of Panama. We express no opinion
as to matters of law other than the laws of the Republic of Panama.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the reference to our name under the caption "Validity of
Securities" in the United States and International prospectuses included in
the Registration Statement. In giving this consent we do not hereby agree
that we come within the category of persons whose consent is required by the
Act or the Rules.
Very truly yours,
TAPIA, LINARES Y ALFARO
Mario E. Correa
EXHIBIT 8
April 12, 1995
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178-2428
Registration Statement on Form S-3
Registration No. 33-58151
----------------------------------
Dear Sirs:
In connection with the above captioned Registration
Statement on Form S-3 (the "Registration Statement") filed by
Carnival Corporation (the "Company") with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations promulgated
thereunder (the "Rules"), we have been requested to render our
opinion as to the matters hereinafter set forth.
In this regard, we have reviewed copies of the Registration
Statement (including the exhibits and amendments thereto) and the
United States and international prospectuses (the "Prospectuses")
relating to concurrent United States and international offerings
of an aggregate of 15,870,000 shares of the Company's Class A
Common Stock, par value $.01 per share (the "Class A Common
Stock"). We have also made such other investigations of fact and
law and have examined the originals, or copies authenticated to
our satisfaction, of such documents, records, certificates or
other instruments as in our judgment are necessary or appropriate
to render the opinion expressed below.
Based on the foregoing, we are of the opinion that the
section entitled "Taxation" (other than the subsection
encaptioned "Other Jurisdictions," as to which we express no
opinion) in each of the Prospectuses contains an accurate general
description, under currently applicable law, of the principal
United States Federal income tax considerations that apply to the
Company's Class A Common Stock.
We are members of the Bar of the State of New York and we do
not purport to be experts in the laws of any jurisdiction other
than the laws of the State of New York and the Federal laws of
the United States.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to our name under the
caption "Validity of Securities" in the Prospectuses included in
the Registration Statement. In giving this consent we do not
hereby agree that we come within the category of persons whose
consent is required by the Act or the Rules.
Very truly yours,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON