AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 18, 1998
REGISTRATION NO. 333-68999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
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)
REPUBLIC OF PANAMA 59-1562976
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3655 N.W. 87TH AVENUE
MIAMI, FLORIDA 33178-2428
(305) 599-2600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
ARNALDO PEREZ, ESQ.
GENERAL COUNSEL
CARNIVAL CORPORATION
3655 N.W. 87TH AVENUE
MIAMI, FLORIDA 33178-2428
(305) 599-2600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
JAMES M. DUBIN, ESQ. ROBERT S. RISOLEO, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & SULLIVAN & CROMWELL
GARRISON
1285 AVENUE OF THE AMERICAS 125 BROAD STREET
NEW YORK, NEW YORK 10019-6064 NEW YORK, NEW YORK 10004
(212) 373-3000 (212) 558-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 of the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, this
Registration Statement relates to $1,000,000,000 of securities registered hereby
and to the remaining unsold $400,000,000 of such securities previously
registered by the Registrant under its Registration Statement on Form S-3 (File
No. 333-43269).
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THE INFORMATION IN THIS PROSPECTUS SUPPLEMENT IS NOT COMPLETE AND MAY BE
CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED
WITH SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS SUPPLEMENT
IS NOT AN OFFER TO SELL THESE SECURITIES AND THE COMPANY IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE SUCH OFFER OF SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER 18, 1998
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED DECEMBER 18, 1998)
[LOGO]
19,000,000 SHARES
CARNIVAL CORPORATION
COMMON STOCK
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We are offering 17,000,000 shares of our Common Stock and Arison Foundation,
Inc. is offering 2,000,000 shares. We will not receive any proceeds from the
sale of shares by Arison Foundation, Inc.
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Our Common Stock is listed on the New York Stock Exchange under the symbol
"CCL." On December 17, 1998, the last reported sale price of the Common Stock on
the New York Stock Exchange was $39.6875 per share.
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The shares of Common Stock will be purchased from us and the selling
stockholder by the Underwriters at a price of $ per share. This will result in
aggregate proceeds of $ to us and $ to the selling stockholder. We will pay
certain expenses of the offering estimated at $ .
The Underwriters may offer the shares in one or more transactions (which may
involve block transactions) on the New York Stock Exchange, in the
over-the-counter market, through negotiated transactions, or otherwise at market
prices prevailing at the time of the sale or at negotiated prices. See
"Underwriters."
INVESTING IN THE COMMON STOCK INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 4 OF THE ACCOMPANYING PROSPECTUS SUPPLEMENT.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus supplement or the accompanying prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The Underwriters expect to deliver the shares to purchasers on
, 1998.
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BEAR, STEARNS & CO. INC. GOLDMAN, SACHS & CO.
THE DATE OF THIS PROSPECTUS SUPPLEMENT IS , 1998
USE OF PROCEEDS
A portion of the net proceeds to us from the sale of the Common Stock will
be used to repay approximately $150 million of indebtedness under our commercial
paper program. Such indebtedness matures from December 24, 1998 to February 5,
1999 and has effective interest rates ranging from 4.85% to 5.31%. The remainder
of our net proceeds will be added to our working capital and will be available
for general corporate purposes, which may include the repayment of indebtedness,
the financing of capital commitments (including our shipbuilding program) and
possible future acquisitions to expand our business. Pending final application,
our net proceeds may be invested in marketable securities, such as certificates
of deposit and commercial paper.
We will not receive any of the proceeds from the sale of the Common Stock by
Arison Foundation, Inc. (the "Foundation").
UNDERWRITERS
Under the terms and subject to the conditions contained in the Underwriting
Agreement with us and the Foundation, dated the date of this Prospectus
Supplement (the "Underwriting Agreement"), we and the Foundation have agreed to
sell 17,000,000 shares and 2,000,000 shares, respectively, to the Underwriters
named below, and the Underwriters named below have severally agreed to purchase
the respective number of shares of our Common Stock set forth opposite their
names below:
NAME NUMBER OF SHARES
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Bear, Stearns & Co. Inc....................................................
Goldman, Sachs & Co........................................................
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Total................................................................ 19,000,000
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On December 10, 1998, Standard & Poor's, a division of The McGraw Hill
Companies, Inc. ("S&P"), announced that it planned to include the Common Stock
in the Standard & Poor's Corporation 500 Composite Stock Price Index (the "S&P
500 Index"), which is composed of 500 common stocks that S&P selects. Shares
offered by this Prospectus Supplement will be offered primarily to index funds
whose portfolios are primarily based on stocks included in the S&P 500 Index.
These index funds may be required to purchase Common Stock as a result of the
inclusion of the Common Stock in the S&P 500 Index.
In the Underwriting Agreement, the Underwriters have agreed, subject to the
terms and conditions of the Underwriting Agreement, to purchase all of the
Common Stock offered by this Prospectus Supplement if any of the shares are
taken. Under certain circumstances, the commitments of the non-defaulting
Underwriters may be increased under the Underwriting Agreement.
The Common Stock may be sold by the Underwriters to purchasers in one or
more transactions (which may involve block transactions) on the New York Stock
Exchange ("NYSE") or otherwise. The distribution of the Common Stock also may be
effected from time to time in special offerings, exchange distributions or
secondary distributions pursuant to and in accordance with the rules of the
NYSE, in the over-the-counter market, in negotiated transactions, through the
writing of options on the Common Stock (whether such options are listed on an
options exchange or otherwise), or in a combination of such methods at
prevailing market prices or at negotiated prices. The Underwriters may effect
such transactions by selling shares to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the Underwriters or the purchasers of such Common Stock for whom they may act as
agents or to whom they may sell as principal.
In connection with the sale of the shares of Common Stock, the Underwriters
will receive compensation in the form of commissions or discounts and may
receive compensation from purchasers of the shares of Common Stock for whom they
may act as agent or to whom they may sell as principal in the form of
S-2
commissions or discounts, in each case in amounts which will not exceed those
customary in the types of transactions involved. The Underwriters and dealers
that participate in the distribution of the shares of Common Stock may be deemed
to be "underwriters" within the meaning of that term under the Securities Act of
1933, as amended (the "Act"), and any discounts received by them from us or the
Foundation and any compensation received by them on resale of the shares of
Common Stock by them may be deemed to be underwriting discounts and commissions
under the Act.
We and the Foundation have agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Act.
Mr. Uzi Zucker, one of our directors, is a Senior Managing Director of Bear,
Stearns & Co. Inc. ("Bear Stearns"). Bear Stearns is one of the investment
banking firms serving as an Underwriter in this offering. In addition, Bear
Stearns has served as an underwriter or placement agent in some of our previous
public offerings. In addition, Bear Stearns and Goldman, Sachs & Co. have
provided investment banking and consulting services to us during the last three
fiscal years and the current fiscal year. It is expected that the Underwriters
may continue to provide investment banking and consulting services when
requested by us.
VALIDITY OF SECURITIES
The validity of the shares of Common Stock will be passed upon by Tapia
Linares y Alfaro, Panama City, Republic of Panama. Paul, Weiss, Rifkind, Wharton
& Garrison, New York, New York, has acted as special United States counsel to us
in connection with the offering of the Common Stock. Sullivan & Cromwell, New
York, New York has acted as counsel for the Underwriters. James M. Dubin, a
partner of Paul, Weiss, Rifkind, Wharton & Garrison and one of our directors, is
the sole stockholder of the trustee of the Micky Arison 1994 "B" Trust, one of
our principal stockholders. Paul, Weiss, Rifkind, Wharton & Garrison also serves
as counsel to Micky Arison.
S-3
$1,400,000,000
CARNIVAL CORPORATION
COMMON STOCK, PREFERRED STOCK, DEBT SECURITIES AND WARRANTS
THE COMPANY
- may sell Common Stock;
- may sell Preferred Stock;
- may sell Debt Securities; and
- may sell Warrants to purchase Common Stock, Preferred Stock or Debt
Securities, or any combination of them, and may sell Warrants to buy and
sell government debt securities, foreign currencies, currency units or
units of a currency index or basket, units of a stock index or basket, or
a commodity or commodity index.
Our Common Stock is listed on the New York Stock Exchange, under the symbol
"CCL". Any Common Stock sold pursuant to a Prospectus Supplement will be listed
on the New York Stock Exchange, subject to official notice of issuance.
THE SELLING STOCKHOLDERS
We have been informed that Micky Arison, our Chairman of the Board and Chief
Executive Officer, intends to make a charitable contribution of 2,000,000 shares
of Common Stock to Arison Foundation, Inc., a charitable foundation, as soon as
practicable after the date of this Prospectus. After such contribution, Arison
Foundation, Inc. may sell up to 2,000,000 shares of Common Stock.
We urge you to read carefully this Prospectus and the accompanying
Prospectus Supplement, which will describe the specific terms of the securities
being offered to you, before you make your investment decision.
INVESTING IN THE COMMON STOCK INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 4.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT IS TRUTHFUL OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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Any statement contained in this Prospectus will be deemed to be modified or
superseded by any inconsistent statement contained in the accompanying
Prospectus Supplement.
THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
The date of this Prospectus is December 18, 1998.
WHERE YOU CAN FIND MORE INFORMATION
We have filed Registration Statements on Form S-3 (the "Registration
Statement") with the Securities and Exchange Commission (the "Commission")
regarding the offering. This Prospectus, which is a part of the Registration
Statement, does not contain all of the information included in the Registration
Statement and you should refer to the Registration Statement and its exhibits to
read that information. References in this Prospectus to any of our contracts or
other documents are not necessarily complete and you should refer to the
exhibits attached to the Registration Statement for copies of the actual
contract or document. You may read and copy the Registration Statement, the
related exhibits and the other materials we file with the Commission at the
Commission's public reference room in Washington, D.C., and at the Commission's
regional offices in Chicago, Illinois and New York, New York. Please call the
Commission at 1-800-SEC-0330 for further information on the operation of the
public reference rooms. The Commission also maintains an Internet site that
contains reports, proxy and information statements and other information
regarding issuers that file with the Commission, including us. The site's
address is http:// www.sec.gov.
We file annual, quarterly and current reports, proxy statements and other
information with the Commission. You may read and copy any of these reports,
statements or other information at the Commission's Internet site or at the
Commission's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. You can request copies of those documents, upon payment of a
duplicating fee, by writing to the Commission. In addition, reports, proxy
statements and other information concerning us can be inspected at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005,
on which our Common Stock is listed.
INCORPORATION BY REFERENCE
The Commission allows us to "incorporate by reference" in this Prospectus
other information we file with them, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this Prospectus, and
information that we file later with the Commission will automatically update and
supersede information filed earlier or included in this Prospectus. We
incorporate by reference the documents listed below and any future filings made
with the Commission under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities covered by this
Prospectus.
- Our Annual Report on Form 10-K for the fiscal year ended November 30,
1997;
- Our Quarterly Reports on Form 10-Q for the fiscal quarters ended February
28, 1998, May 31, 1998 and August 31, 1998; and
- Our Current Reports on Form 8-K, filed with the Commission on January 28,
1998, May 13, 1998 and December 17, 1998.
We have filed each of these documents with the Commission and they are
available from the Commission's Internet site and public reference rooms
described under "Where You Can Find More Information" above. You may also
request a copy of these filings, at no cost, by writing or telephoning us at the
following address:
Investor Relations
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178-2428
(305) 599-2600
You should rely only on the information incorporated by reference or
provided in this Prospectus or any Prospectus Supplement. We have not authorized
anyone else to provide you with different information.
2
THE COMPANY
We are the world's largest multiple-night cruise company based on the number
of passengers carried, revenues generated and available capacity. We offer a
broad range of cruise products, serving the contemporary cruise market through
Carnival Cruise Lines, the premium market through Holland America Line and the
luxury market through Cunard Line, Seabourn Line and Windstar Cruises. In total,
we own and operate 33 cruise ships, with a total capacity of 39,504 passengers
based on two passengers per cabin. The thirteen Carnival Cruise Lines ships have
a total capacity of 24,442 passengers, with itineraries primarily in the
Caribbean, Mexican Riviera and Alaska. The eight Holland American Line ships
have a total capacity of 10,302 passengers, with itineraries in Alaska, the
Caribbean, Europe and through the Panama Canal, and other worldwide itineraries.
The five Cunard Line ships have a total capacity of 3,380 passengers, with
itineraries in Europe, the Caribbean, Asia and other world wide destinations, as
well as transatlantic cruises. The three Seabourn ships have a total capacity of
624 passengers, with itineraries in the Caribbean, the Baltics, Europe, the
Americas and the Far East. The four Windstar ships have a total capacity of 756
passengers, with itineraries in the Caribbean, Costa Rica, and the
Mediterranean. We also own equity interests in Costa Cruises and Airtours plc,
an integrated leisure travel group. The seven Costa Cruise ships have a total
capacity of 7,644 passengers, with itineraries in Europe, the Caribbean and
South America. Airtours plc owns tour operators, charter airlines, travel
agencies, three cruise ships and holiday hotels.
We have signed an agreement with a Finnish shipyard for the construction of
one cruise ship for Carnival Cruise Lines with a capacity of 2,100 passengers,
which is expected to enter service in April 2001. We also have an option to have
the Finnish shipyard build two additional 2,100-passenger vessels for Carnival
Cruise Lines. If the option is exercised, the ships would be expected to enter
service in 2002. We also have agreements with an Italian shipyard for the
construction of four cruise ships for Carnival Cruise Lines, each with a
capacity of 2,758 passengers, which are expected to enter service in July 1999,
August 2000, December 2002 and August 2003, respectively. In addition, the
Italian shipyard has agreed to construct three cruise ships for Holland America
Line, two with a capacity of 1,440 passengers and one with a capacity of 1,380.
These ships are expected to enter service in August 1999, March 2000 and
November 2000, respectively.
We also operate a tour business which markets sightseeing tours both
separately and as a part of Holland America Line cruise/tour packages. Through
Holland America-Line Westours Inc., we operate 14 hotels in Alaska and the
Canadian Yukon, two luxury day-boats offering tours to the glaciers of Alaska
and the Yukon River, over 280 motor coaches used for sightseeing and charters in
the states of Washington and Alaska and in the Canadian Rockies, and 13 private
domed rail cars which we run on the Alaskan Railroad between Anchorage and
Fairbanks.
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We were incorporated under the laws of the Republic of Panama in November
1974. Our executive offices are located at 3655 N.W. 87th Avenue, Miami, Florida
33178-2428, telephone number (305) 599-2600. Our registered office in Panama is
located at 10 Elvira Mendez Street, Interseco Building, Panama, Republic of
Panama.
3
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING RISKS AS WELL AS THE OTHER
INFORMATION CONTAINED OR INCORPORATED BY REFERENCE INTO THIS PROSPECTUS BEFORE
PURCHASING THE SECURITIES.
INCOME TAXES
Under Section 883 of the Internal Revenue Code of 1986, as amended (the
"Code"), corporations incorporated outside the U.S. are exempt from U.S.
corporate income tax on U.S. source income from international passenger cruise
operations if (i) their countries of incorporation exempt shipping operations of
U.S. persons from income tax (the "Incorporation Test") and (ii) they meet one
of three tests with respect to their stockholders: a "CFC Test" (which is
satisfied if the company is a controlled foreign corporation), an "Ultimate
Owner Test" (which is satisfied if a majority of the company's stock is
ultimately owned by residents of certain foreign countries) or a "Publicly
Traded Test." Our cruise ship operations meet the Incorporation Test because our
subsidiaries are incorporated in countries which exempt from their income tax
U.S. persons involved in shipping operations. They do not currently meet either
the CFC Test or the Ultimate Owner Test; however, we believe that they meet the
Publicly Traded Test and therefore qualify for the benefits of Section 883.
A corporation meets the Publicly Traded Test if the stock of the corporation
(or its direct or indirect corporate parent) is "primarily and regularly traded
on an established securities market" in the United States. Although no Treasury
regulations have been promulgated which explain when stock is primarily and
regularly traded for purposes of this exemption, Treasury regulations have been
promulgated which interpret a similar phrase under another section, Section 884.
Under the Section 884 regulations, stock is considered primarily and regularly
traded if (i) 80% (by vote and value) of the stock of the corporation is listed
on an established securities market in the United States where more shares are
traded than in any other country, (ii) trades of the stock are effected on that
market, other than in small quantities, on at least 60 days during the taxable
year, (iii) the aggregate number of shares so traded is equal to 10% or more of
the average number of shares outstanding during the taxable year, and (iv) the
company is not "closely held." We believe that we meet these requirements. We
have only one class of stock outstanding, common stock (the "Common Stock"),
which is listed on the New York Stock Exchange (the "NYSE"), where more shares
trade than in any other country. Trades of the Common Stock have been effected
in more than acceptable quantities on every business day since our initial
public offering, and the annual volume of these trades has significantly
exceeded 10% of the average number of shares outstanding. Moreover, we believe
that any stock traded on the NYSE is considered as traded on a qualifying
exchange and, to our knowledge, we are not closely held because no person other
than members of the Arison family and certain related entities owns more than 5%
of our stock, and they hold less than 50% of the outstanding shares.
Accordingly, we believe that virtually all of our income (with the exception
of our United States source income from the operations of the transportation,
hotel and tour business of Holland America Line) is exempt from United States
federal income taxes. If we were found not to meet the Publicly Traded Test (and
also did not meet the CFC Test or the Ultimate Owner Test) or if Section 883
were to be changed in a manner adverse to us, much of our income would become
subject to taxation by the United States at higher than normal corporate tax
rates.
CONTROL BY PRINCIPAL SHAREHOLDERS
Ted Arison (our founder), the Micky Arison 1994 "B" Trust (the "B Trust"),
certain members of the Arison family and trusts for the benefit of Ted Arison's
children (collectively, the "Principal Stockholders"), beneficially own on the
date of this Prospectus, a total of approximately 46.7% of our outstanding
Common Stock (without giving effect to any sale of Common Stock under this
Prospectus). As a result, the Principal Stockholders have the power to
substantially influence the election of directors and our affairs and policies.
Micky Arison, our Chairman and Chief Executive Officer, has the sole right to
vote and direct the sale of the Common Stock held by the B Trust, subject,
during Ted Arison's lifetime, to the consent of the trustee of the B Trust.
SOURCE OF INTEREST ON THE DEBT SECURITIES
Under the "branch tax" rules of the Code, it is possible that,
notwithstanding that we are a Panamanian corporation, some or all interest
payable on the Securities may be treated as United States source income for
United States federal income tax purposes.
4
USE OF PROCEEDS
Unless we state otherwise in the applicable prospectus supplement (each a
"Prospectus Supplement"), we will add our net proceeds from the sale of any
securities offered by this Prospectus (the "Securities") to our working capital.
The proceeds will be available for general corporate purposes, which may include
the repayment of indebtedness, the financing of capital commitments and possible
future acquisitions to expand our business. Pending final application, the net
proceeds may be invested in marketable securities, including certificates of
deposit and commercial paper. We will not receive any of the proceeds from the
sale of Common Stock by the selling stockholders.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the nine months ended August 31, 1998 and 1997 and for the five years ended
November 30, 1997:
NINE MONTHS
ENDED AUGUST 31, YEARS ENDED NOVEMBER 30,
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1998 1997 1997 1996 1995 1994 1993
- --------- --------- --------- --------- --------- --------- ---------
9.9x 9.9x 9.0x 6.4x 6.2x 5.8x 5.7x
We have computed the ratio of earnings to fixed charges by dividing earnings
from continuing operations available for fixed charges (income from continuing
operations before income taxes adjusted for undistributed earnings of
affiliates, minority interest, interest expense and one-third of rent expense)
by fixed charges. Fixed charges include interest costs (interest expense plus
capitalized interest and one-third of rent expense). We have assumed that
one-third of rent expense is representative of the interest factor.
DESCRIPTION OF DEBT SECURITIES
We may issue from time to time debt securities in one or more series that
will consist of either senior debt ("Senior Debt Securities") or subordinated
debt ("Subordinated Debt Securities"). The Senior Debt Securities will be issued
under an indenture dated as of March 1, 1993 (the "Senior Indenture"), between
us and First Trust National Association (the "Senior Trustee"), as Trustee. The
Subordinated Debt Securities will be issued under an indenture (the
"Subordinated Indenture"), between us and a trustee to be named in the
applicable Prospectus Supplement (the "Subordinated Trustee"). The term
"Indenture" refers to either the Senior Indenture or the Subordinated Indenture,
as appropriate, the term "Trustee" refers to either the Senior Trustee or the
Subordinated Trustee, as appropriate, and the term "Debt Securities" refers to
the Senior Debt Securities and the Subordinated Debt Securities. Each Indenture
will be subject to and governed by the Trust Indenture Act of 1939.
The following statements with respect to the Debt Securities are not
complete and are subject to the detailed provisions of the Senior Indenture and
the Subordinated Indenture. Forms of these agreements are filed as exhibits to
the Registration Statement.
The particular terms of each series of Debt Securities (including any
additions or modifications to the general terms of the Debt Securities) will be
described in a Prospectus Supplement that will be filed with the Commission. To
review the terms of a particular series of Debt Securities, you must refer to
both the Prospectus Supplement for the particular series and to the description
of Debt Securities contained in this Prospectus. There may be different trustees
for one or more different series of Debt Securities. See "--Trustee".
GENERAL
The aggregate public offering price of the Senior Debt Securities and
Subordinated Debt Securities to be offered by this Prospectus will not exceed
$1,400,000,000 (or its foreign exchange rate equivalent if any Debt Securities
are offered in currencies other than U.S. dollars). The Indenture allows us to
issue
5
additional Debt Securities in amounts authorized by our Board of Directors or a
duly authorized committee of our Board of Directors.
The applicable Prospectus Supplement for a series of Debt Securities to be
issued will describe the following terms of the offered Debt Securities:
- the title;
- the aggregate principal amount;
- the percentage of their principal amount at which they will be offered;
- the date or dates on which principal is payable;
- the interest rate or rates and/or the method of determining the interest
rates;
- the dates from which interest, if any, will accrue, the method of
determining those dates, and the dates on which interest is payable;
- the terms for redemption, extension or early repayment;
- the denominations in which the Debt Securities are authorized to be issued
(if other than denominations of $1,000 or any integral multiple thereof);
- the currency or currencies of payment of principal or interest;
- the provisions for a sinking fund, if any;
- if it is an amount other than the principal amount of the Debt Securities,
the portion of the principal amount that will be payable if the maturity
of the Debt Securities is declared to be accelerated;
- any other restrictive covenants included for the benefit of the holders of
the Debt Securities;
- the events of default;
- whether the Debt Securities are issuable as a global security or
Securities;
- the applicable tax consequences related to the Debt Securities;
- the terms and conditions, if any, under which the Debt Securities may be
converted into or exchanged for Common Stock or other securities;
- the applicability of the provisions described in "--Defeasance" below;
- any subordination provisions applicable to the Debt Securities in addition
to or different than those described under "--Subordination" below; and
- any other term or provision which is not inconsistent with the Indenture.
One or more series of Debt Securities may be sold at a substantial discount
below their stated principal amount, bearing no interest or interest at a rate
which at the time of issuance is below market rates. Any applicable Federal
income tax consequences and special considerations will be described in the
applicable Prospectus Supplement.
Except as otherwise stated in the applicable Prospectus Supplement,
principal, premium, if any, and interest, if any, will be payable at an office
or agency to be maintained by us, except that at our option, interest may be
paid by a check mailed to the person entitled to it.
The Debt Securities will be issued only in fully registered form without
coupons and may be presented for registration of transfer or exchange at the
corporate trust office of the Trustee. No service charge will be made for any
transfer or exchange of the Debt Securities, but we may require payment of a sum
to cover
6
any tax or other governmental charge that must be paid in connection with the
transfer or exchange. Not all Debt Securities of any one series need be issued
at the same time, and, unless otherwise provided, a series may be reopened for
issuances of additional Debt Securities of that series.
The Indenture does not contain any covenants or provisions that are
specifically intended to give holders of the Debt Securities protection if we
undertake a highly leveraged transaction. With respect to any series of Debt
Securities, the existence or non-existence of such covenants or provisions will
be disclosed in the applicable Prospectus Supplement.
Neither Panamanian law nor our Articles of Incorporation or By-laws limit
the right of non-resident or foreign owners to hold Debt Securities. While no
tax treaty currently exists between the Republic of Panama and the United
States, we believe that under current law interest payments to holders of our
Debt Securities are not subject to taxation under the laws of the Republic of
Panama.
BOOK-ENTRY SYSTEM
The Debt Securities of a series may be issued in the form of one or more
global securities that will be deposited with a depository (the "Depository") or
with a nominee for the Depository identified in the applicable Prospectus
Supplement, and will be registered in the name of the Depository or a nominee of
it. In such a case one or more global securities will be issued in a
denomination or aggregate denominations equal to the aggregate principal amount
of all the Debt Securities of the series to be represented by the global
security or securities. Unless and until it is exchanged in whole or in part for
Debt Securities in definitive certificated form, a global security may be
transferred, in whole but not in part, only to another nominee of the Depository
for that series, or to a successor Depository for that series selected or
approved by us, or to a nominee of that successor Depository.
The specific depository arrangement with respect to any series of Debt
Securities to be represented by a global security will be described in the
applicable Prospectus Supplement.
PAYMENT OF ADDITIONAL AMOUNTS
We will agree that any amounts payable on the Debt Securities will be paid
without deduction or withholding for any taxes, levies, imposts or other
governmental charges imposed, assessed, levied or collected by or for the
account of the Republic of Panama or any of its political subdivisions or taxing
authorities or by or for the account of the jurisdiction of incorporation (other
than the United States) of a successor corporation to us, to the extent that
such taxes first become applicable as a result of the successor corporation
becoming the obligor on the Debt Securities ("Panamanian Taxes"). In addition,
if deduction or withholding of any Panamanian Taxes is ever required by the
Republic of Panama or any of its political subdivisions or taxing authorities
(or the jurisdiction of incorporation (other than the United States) of a
successor corporation to us), we will (if the holders or beneficial owners of
the relevant Debt Securities comply with any relevant administrative
requirements) pay any additional amounts ("Additional Amounts") required to make
the net amounts paid to the holders of the Debt Securities or the Trustee under
the Indenture, as the case may be, after such deduction or withholding, equal to
the amounts of principal, premium, if any, interest, if any, and sinking fund or
analogous payments, if any, to which those holders or the Trustee are entitled.
We are not required to pay Additional Amounts in respect of the following Taxes
("Excluded Taxes"):
- any present or future Panamanian Taxes which would not have been so
imposed, assessed, levied or collected if the holder or beneficial owner
of the relevant Debt Security were not or had not been a domiciliary,
national or resident of, or engaging or having been engaged in business or
maintaining or having maintained a permanent establishment or being or
having been physically present in, the Republic of Panama (or the
jurisdiction of incorporation of a successor corporation to us) or any
such political subdivision of such jurisdiction or otherwise having or
having had some connection
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with any such jurisdiction other than holding or owning a Debt Security,
or collecting principal and interest, if any, on, or the enforcement of, a
Debt Security;
- any present or future Panamanian Taxes which would not have been so
imposed, assessed, levied or collected but for the fact that, where
presentation is required, the relevant Debt Security was presented more
than thirty days after the date the payment became due or was provided
for, whichever is later; or
- any present or future Panamanian Taxes which would not have been so
imposed, assessed, levied or collected but for the failure to comply with
any certification, identification or other reporting requirements
concerning the nationality, residence, identity or connection with the
Republic of Panama (or the jurisdiction of incorporation of a successor
corporation to us) or any of its political subdivisions of the holder or
beneficial owner of the relevant Debt Security, if compliance is required
by statute or by rules or regulations of any such jurisdiction as a
condition to relief or exemption from Panamanian Taxes.
We or any successor to us, as the case may be, will indemnify and hold
harmless each holder of the Debt Securities and upon written request reimburse
each holder for the amount of:
- any Panamanian Taxes levied or imposed and paid by the holder of the Debt
Securities (other than Excluded Taxes) as a result of payments made with
respect to the Debt Securities;
- any liability (including penalties, interest and expenses) arising from or
in connection with the levying or imposing of any Panamanian Taxes; and
- any Panamanian Taxes levied or imposed with respect to payment of
Additional Amounts or any reimbursement pursuant to this list.
We or our successor, as the case may be, will also (1) make such withholding
or deduction and (2) remit the full amount deducted or withheld, to the relevant
authority in accordance with applicable law. We or any successor to us, as the
case may be, will furnish the Trustee within 30 days after the date the payment
of any Panamanian Taxes is due, certified copies of tax receipts evidencing the
payment by us or any successor to us, as the case may be. The Trustee will
forward copies of the tax receipts to the holders of the Debt Securities.
At least 30 days prior to each date on which any payment under or with
respect to the Debt Securities is due and payable, if we will be obligated to
pay Additional Amounts with respect to those payments, we will deliver to the
Trustee an officers' certificate stating that Additional Amounts will be
payable, stating the amounts that will be payable, and setting forth any other
information necessary to enable the Trustee to pay the Additional Amounts to
holders of the Debt Securities on the payment date.
REDEMPTION OR ASSUMPTION OF DEBT SECURITIES UNDER CERTAIN CIRCUMSTANCES
Unless otherwise specified in the Prospectus Supplement with respect to any
series of Debt Securities, if as the result of any change in or any amendment to
the laws, including any regulations and any applicable double taxation treaty or
convention, of the Republic of Panama (or non-U.S. jurisdiction of incorporation
of a successor corporation to us), or of any of its political subdivisions or
taxing authorities affecting taxation, or any change in an application or
interpretation of those laws, which change, amendment, application or
interpretation becomes effective on or after the original issuance date of the
series (or, in certain circumstances, the later date on which a corporation
becomes a successor corporation to us), we determine based upon an opinion of
independent counsel of recognized standing that (i) we would be required to pay
Additional Amounts on the next succeeding date for the payment thereof, or (ii)
any taxes would be imposed (whether by way of deduction, withholding or
otherwise) by the Republic of Panama (or the jurisdiction of incorporation
(other than the United States) of a successor corporation to us) or by any of
its political subdivisions or taxing authorities, upon or with respect to any
principal,
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premium, if any, interest, if any, or sinking fund or analogous payments, if
any, then we may, at our option, on giving not less than 30 nor more than 60
days' irrevocable notice, redeem the series of Debt Securities in whole at any
time (other than Debt Securities of a series having a variable rate of interest,
which may be redeemed only on an interest payment date) at a redemption price
equal to 100% of the principal amount plus accrued interest to the date fixed
for redemption (other than outstanding original issue discount Debt Securities,
which may be redeemed at the redemption price specified by the terms of each
series of such Debt Securities). No notice of redemption may be given more than
90 days prior to the earliest date on which we would be obligated to pay the
Additional Amounts or the tax would be imposed, as the case may be. Also, at the
time that the notice of redemption is given, the obligation to pay Additional
Amounts or tax, as the case may be, must be in effect.
MERGER AND CONSOLIDATION
We cannot consolidate with or merge into any other person or transfer or
lease all or substantially all of our assets to any person unless:
- after giving effect to the transaction, no Event of Default, and no event
which after notice or lapse of time or both would become an Event of
Default, shall have occurred and be continuing; and
- the person formed by the consolidation or into which we merged, or the
person which acquires or leases all or substantially all of our assets,
assumes all our obligations under the Debt Securities and the Indenture.
EVENTS OF DEFAULT AND NOTICE
Unless otherwise noted in an applicable Prospectus Supplement, the following
are "Events of Default" in respect of a particular series of Debt Securities:
- failure to pay interest (including Additional Amounts) for 30 days after
it is due;
- failure to pay the principal or premium, if any, when due;
- failure to make a sinking fund payment for five days after it becomes due;
- failure to perform any other covenant for 60 days after being given
written notice of the failure in accordance with the Indenture;
- failure to pay when due the principal of, or acceleration of, any
indebtedness for money borrowed by us in excess of $20 million, if the
indebtedness is not discharged, or the acceleration is not annulled,
within 30 days of us receiving written notice of the failure in accordance
with the Indenture;
- certain events of bankruptcy, insolvency or reorganization; and
- any other Event of Default, as indicated in the applicable Prospectus
Supplement.
If an Event of Default in respect of a particular series of Debt Securities
outstanding occurs and is continuing, either the Trustee or the holders of at
least 25% in aggregate principal amount of the Debt Securities outstanding of
the series may declare the principal amount (or, if the Debt Securities of the
series are original issue discount Debt Securities, the portion of the principal
amount as may be specified in the terms of the series) of all of the Debt
Securities of the series to be due and payable immediately. At any time after
such a declaration of acceleration has been made, but before a judgment or
decree for the payment of money due upon acceleration has been obtained by the
Trustee, the holders of a majority in aggregate principal amount outstanding of
the Debt Securities of the affected series may, under certain circumstances,
rescind and annul the declaration and its consequences if all Events of Default
relating to the Debt Securities of the series, other than the non-payment of
principal due solely by the declaration of acceleration, have been cured or
waived as provided in the Indenture.
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The Trustee will, within 90 days after a default in respect of a series of
Debt Securities, give the holders of the series notice of all uncured defaults
known to it (the term "default" includes the events specified above without
grace periods). However, except in the case of default in the payment of the
principal of, or premium, if any, on or interest on any of the Debt Securities
of the series, or in the payment of any sinking fund installment with respect to
the Debt Securities of the series, the Trustee may withhold such notice and will
not be liable to holders for doing so, if the Trustee in good faith determines
that the withholding of such notice is in the interests of the holders of the
series.
Pursuant to the terms of the Indenture, we are required to furnish to the
Trustee annually a statement of certain of our officers stating whether or not
to the best of their knowledge we are in default, in respect of any series of
Debt Securities, in the performance and observance of the terms of the Indenture
and, if we are in default, specifying the default and the nature of it.
The Indenture provides that the holders of a majority in aggregate principal
amount of all Debt Securities then outstanding of a particular series will have
the right to waive certain defaults in respect of the series and, subject to
certain limitations, to direct the time, method and place of conducting any
proceedings for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee. The Indenture provides that, in case an Event of
Default in respect of a particular series of Debt Securities occurs (which is
not cured or waived), the Trustee will be required to exercise such of its
rights and powers under the Indenture, and to use the degree of care and skill
in their exercise, that a prudent man would exercise or use in the conduct of
his own affairs. Otherwise, the Trustee need only perform such duties as are
specifically set forth in the Indenture. Subject to those provisions, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request of any of the holders of the series unless
they have offered to the Trustee reasonable security or indemnity.
No holder of any series of Debt Securities will have any right to institute
any proceeding with respect to the Indenture or for any remedy under it, unless
the holder has previously given to the Trustee written notice of a continuing
Event of Default and unless the holders of at least 25% in aggregate principal
amount of the outstanding Debt Securities of the series have made written
request, and offered reasonable indemnity, to the Trustee to institute such a
proceeding as trustee. In addition, the Trustee must not have received from the
holders of a majority in aggregate principal amount of the outstanding Debt
Securities of the series a direction inconsistent with the request and have
failed to institute the proceeding within 60 days. However, such limitations do
not apply to a suit instituted by a holder of a Debt Security for enforcement of
payment of the principal of and premium, if any, or interest on the Debt
Security on or after the respective due dates expressed in the Debt Security.
MODIFICATION OF THE INDENTURE
With certain exceptions, we may modify the Indenture, our rights and
obligations, and the rights of the holders of a particular series, with the
consent of the holders of at least 66 2/3% in aggregate principal amount of the
outstanding Debt Securities of that series. However, without the consent of each
affected holder of each Debt Security of a series, no modification may be made
which would:
- change the stated maturity of the principal or premium, if any, of a Debt
Security in the series;
- change the stated maturity of the interest (including Additional Amounts)
on any Debt Security in the series;
- reduce the principal amount of a Debt Security in the series;
- reduce the interest rate on any Debt Security in the series; or
- reduce the amount of principal of an original issue discount Debt Security
that is payable upon the acceleration of the maturity of the Security.
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In addition, the consent of the holders of all then outstanding Debt
Securities of the series is required to reduce the percentage of holders of Debt
Securities whose consent is required to modify the Indenture.
DEFEASANCE
An applicable supplemental indenture may allow us to elect either (i) to
defease and be discharged from any and all obligations with respect to the Debt
Securities of any series pursuant to the supplemental indenture, except for the
obligation to pay Additional Amounts and certain other obligations, or (ii) to
be released from our obligations with respect to the Debt Securities under
certain sections of the Indenture or supplemental indenture or certain Events of
Default. In order to exercise either defeasance option, we must irrevocably
deposit with the applicable Trustee, in trust, money or certain direct
qualifying obligations of the United States or an agency or instrumentality of
the United States which, in either case, are not callable at the issuer's option
("U.S. Government Obligations") or certain depositary receipts for U.S.
Government Obligations that through the payment of interest and principal on
them will provide sufficient money to pay all the principal of and premium, if
any, and any interest on, the Debt Securities on the dates the payments are due.
Defeasance may be effected only if, among other things:
- no Event of Default or event which with the giving of notice or lapse of
time, or both, would become an Event of Default under the applicable
Indenture has occurred and is continuing on the date of the deposit;
- in the event of defeasance under clause (i) above, we have delivered an
opinion of counsel, stating that we have received from, or there has been
published by, the Internal Revenue Service a ruling, or since the date of
the applicable supplemental indenture there has been a change in
applicable federal law, holding that the holders of the Debt Securities
will not recognize gain or loss for United States federal income tax
purposes as a result of the deposit or defeasance, and will be subject to
United States federal income tax in the same manner as if the defeasance
had not occurred; and
- in the event of defeasance under clause (ii) above, we have delivered an
opinion of counsel to the effect that, among other things, the holders of
the Debt Securities will not recognize gain or loss for United States
federal income tax purposes as a result of the deposit or defeasance and
will be subject to United States federal income tax in the same manner as
if the defeasance had not occurred.
If we fail to comply with our remaining obligations under the applicable
Indenture or supplemental indenture after a defeasance of the Indenture and
supplemental indenture with respect to Debt Securities as described under clause
(ii) above, and the Debt Securities are declared due and payable because of the
occurrence of any undefeased Event of Default, the amount of money and U.S.
Government Obligations on deposit with the Trustee might be insufficient to pay
amounts due on the Debt Securities of the series at the time of the acceleration
resulting from the Event of Default. However, we will remain liable in respect
of the payments.
SUBORDINATION
If our assets are distributed upon our dissolution, winding up, liquidation
or reorganization, the payment of the principal of (and premium, if any), and
interest on, the Subordinated Debt Securities will be paid after, to the extent
provided in the Subordinated Indenture and the applicable supplemental
indenture, all senior indebtedness is paid in full, including Senior Debt
Securities. Nevertheless, our obligation to pay principal (and premium, if any)
or interest on the Subordinated Debt Securities will not otherwise be
affected.We may not pay any principal (or premium, if any), sinking fund or
interest on the Subordinated Debt Securities when we are in default in the
payment of principal, premium, if any, sinking fund or interest on senior
indebtedness. If, while we are in default on senior indebtedness, any payment is
received by the Subordinated Trustee under the Subordinated Indenture or the
holders of any of the Subordinated Debt Securities before we have paid all
senior indebtedness in full, the payment or
11
distribution must either be paid over to the holders of the unpaid senior
indebtedness or applied to the repayment of the unpaid senior indebtedness.
Until we have paid the senior indebtedness in full, the holders of the
Subordinated Debt Securities will be subrogated to the rights of the holders of
our senior indebtedness to the extent that payments are made to the holders of
senior indebtedness out of the distributive share of the Subordinated Debt
Securities.
Because of the way in which the subordination provisions operate, if our
assets are distributed upon insolvency, certain of our general creditors may
recover more, ratably, than holders of Subordinated Debt Securities. The
Subordinated Indenture or applicable supplemental indenture may state that its
subordination provisions will not apply to money and securities held in trust
under the satisfaction and discharge, and the legal defeasance, provisions of
the Subordinated Indenture.
If this Prospectus is being delivered in connection with the offering of a
series of Subordinated Debt Securities, the accompanying Prospectus Supplement
or the information incorporated by reference in it will describe the approximate
amount of senior indebtedness outstanding as of a recent date.
CONVERSION RIGHTS
The terms and conditions, if any, on which Debt Securities being offered are
convertible into Common Stock or other of our securities will be set forth in an
applicable Prospectus Supplement. The terms to be described will include the
conversion price, the conversion period, provisions as to whether conversion
will be at the option of the holder or us, the events requiring an adjustment of
the conversion price and provisions affecting conversion in the event that the
Debt Securities are redeemed.
TRUSTEE
The Trustee may resign or be removed with respect to one or more series of
Debt Securities, and a successor Trustee may be appointed to act with respect to
that or those series. In the event that there are two or more persons acting as
Trustee with respect to different series of Debt Securities, each Trustee will
be a trustee of a trust or trusts under the Indenture that are separate and
apart from the trust or trusts administered by any other Trustee, and any action
permitted or required to be taken by the "Trustee" may be taken by each
successor Trustee with respect to, and only with respect to, the one or more
series of Debt Securities for which that successor is acting as Trustee.
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DESCRIPTION OF WARRANTS
We may issue Warrants for the purchase of Common Stock, Preferred Stock or
Debt Securities, Warrants to purchase or sell debt securities of or guaranteed
by the United States ("Government Debt Securities"), Warrants to purchase or
sell foreign currencies, currency units or units of a currency index or currency
basket, Warrants to purchase or sell units of a stock index or a stock basket
and Warrants to purchase or sell a commodity or a commodity index. Warrants may
be issued independently or together with any Securities offered by any
Prospectus Supplement and may be attached to or separate from those Securities.
The Warrants will be settled either through physical delivery or through payment
of a cash settlement value as described in this Prospectus and in any applicable
Prospectus Supplement. The Warrants will be issued under warrant agreements
(each a "Warrant Agreement") to be entered into with a bank or trust company, as
warrant agent (the "Warrant Agent"), all as set forth in the relevant Prospectus
Supplement. The Warrant Agent will act solely as our agent in connection with
the Warrant certificates and will not assume any obligation or relationship of
agency or trust for or with any holders of Warrant certificates or beneficial
owners of Warrants. The following summaries of certain provisions of the forms
of Warrant Agreement are not complete and are qualified by reference to the
provisions of the forms of Warrant Agreement (including the forms of Warrant
certificates), copies of which will be filed as exhibits to the Registration
Statement (or incorporated by reference into the Registration Statement).
The particular terms of any Warrants (including any modification or
additions to the general terms of the Warrants) will be described in a
Prospectus Supplement that will be filed with the Commission. To review the
terms of any particular Warrants, you must refer to both the Prospectus
Supplement relating to such Warrants and to the description of the Warrants in
this Prospectus.
GENERAL
A Prospectus Supplement will describe the following terms of any Warrants
(to the extent such terms are applicable to the Warrants):
- their title;
- their aggregate number;
- whether the Warrants are for the purchase or sale of Common Stock,
Preferred Stock, Debt Securities, Government Debt Securities, currencies,
currency units, composite currencies, currency indices or currency
baskets, stock indices, stock baskets, commodities, commodity indices or
any other index or reference as described in the Prospectus Supplement;
- their price or prices;
- the currency or currencies, including composite currencies or currency
units, in which the price of the Warrants may be payable;
- the date, if any, on and after which the Warrants and the related Common
Stock, Preferred Stock, or Debt Securities will be separately
transferable;
- the date on which the right to exercise the Warrants shall commence, and
the date on which the right shall expire;
- the maximum or minimum number of the Warrants which may be exercised at
any time;
- a discussion of material federal income tax considerations, if any;
- the terms, procedures and limitations relating to the exercise of the
Warrants; and
- any other terms of the Warrants, including any terms which may be required
or advisable under United States laws or regulations.
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If the Warrants are to purchase Common Stock or Preferred Stock, the
Prospectus Supplement will also describe the purchase price for the underlying
Common Stock or Preferred Stock.
If the Warrants are to purchase Debt Securities, the Prospectus Supplement
will also describe:
- the designation, aggregate principal amount, currency, currency unit,
composite currency or currency basket of denomination and other terms of
the Debt Securities purchasable upon exercise of the Warrants;
- the designation and terms of the Debt Securities with which the Warrants
are issued and the number of Warrants issued with each such Debt Security;
- the date on and after which the Warrants and the related Debt Securities
will be separately transferable, if any; and
- the principal amount of Debt Securities purchasable upon exercise of each
Warrant and the price at which and currency, currency unit, composite
currency or currency basket in which the principal amount of Debt
Securities may be purchased upon exercise.
If the Warrants are to purchase or sell Government Debt Securities or a
foreign currency, currency unit, composite currency, currency index or currency
basket, the Warrants will be listed on a national securities exchange and the
Prospectus Supplement will describe the amount and designation of the Government
Debt Securities or currency, currency unit, composite currency, currency index
or currency basket, as the case may be, subject to each Warrant, whether the
Warrants are to purchase or sell the Government Debt Securities, foreign
currency, currency unit, composite currency, currency index or currency basket,
whether the Warrants provide for cash settlement or delivery of the Government
Debt Securities or foreign currency, currency unit, composite currency, currency
index or currency basket upon exercise, and the national securities exchange on
which the Warrants will be listed.
If the Warrants are to purchase or sell a stock index or a stock basket, the
Warrants will provide for payment of an amount in cash determined by reference
to increases or decreases in that stock index or stock basket and will be listed
on a national securities exchange, and the Prospectus Supplement will describe
the terms of the Warrants, whether the Warrants are to purchase or sell the
stock index or stock basket, the stock index or stock basket covered by the
Warrants and the market to which the stock index or stock basket relates,
whether the Warrants are to purchase or sell the stock index or stock basket and
the national securities exchange on which the Warrants will be listed.
If the Warrants are to purchase or sell a commodity or commodity index, the
Warrants will provide for cash settlement or delivery of the particular
commodity or commodities, and the Warrants will be listed on a national
securities exchange. The Prospectus Supplement will describe the terms of the
Warrants, the commodity or commodity index covered by the Warrants, whether the
Warrants are to purchase or sell the commodity or commodity index, whether the
Warrants provide for cash settlement or delivery of the commodity or commodity
index, the market, if any, to which the commodity or commodity index relates and
the national securities exchange on which the Warrants will be listed.
Warrant certificates may be exchanged for new Warrant certificates of
different denominations, may be presented for registration of transfer, and may
be exercised at the corporate trust office of the Warrant Agent or any other
office indicated in the Prospectus Supplement. Warrants to purchase or sell
Government Debt Securities or a foreign currency, currency unit, composite
currency, currency index or currency basket, and Warrants to purchase stock
indices or stock baskets or commodities or commodity indices, may be issued in
the form of a single global warrant certificate, registered in the name of the
nominee of the depository of the Warrants, or may initially be issued in the
form of definitive certificates that may be exchanged, on a fixed date, or on a
date or dates we select, for interests in a global warrant certificate, as
described in the applicable Prospectus Supplement.
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Prior to the exercise of their Warrants, holders of Warrants to purchase
Common Stock, Preferred Stock or Debt Securities will, until their Warrants are
exercised, not have any of the rights of holders of such Securities.
The aggregate public offering price of the Warrants offered under this
Prospectus will not exceed $1,400,000,000.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase the amount of Common Stock,
Preferred Stock or Debt Securities, or purchase or sell the amount of Government
Debt Securities, or the amount of currency, currency unit, composite currency,
currency index or currency basket, stock index or stock basket, commodity or
commodities, at the exercise price, or receive the settlement value in respect
of that amount of Government Debt Securities, currency, currency unit, composite
currency, currency index or currency basket, stock index or stock basket,
commodity or commodity index, as shall in each case be set forth in or
calculable from, the applicable Prospectus Supplement or as otherwise described
in the Prospectus Supplement. Warrants may be exercised on the date set forth in
the applicable Prospectus Supplement or as may be otherwise described in such
Prospectus Supplement. After that date (or a later date declared by us),
unexercised Warrants will become void.
Subject to any restrictions and additional requirements that may be set
forth in the applicable Prospectus Supplement, Warrants may be exercised by
delivering to the Warrant Agent the Warrant certificate properly completed and
duly executed and of payment as provided in the Prospectus Supplement of the
amount required to purchase the Common Stock, Preferred Stock or Debt
Securities, or (except in the case of Warrants providing for cash settlement)
payment for or delivery of the Government Debt Securities or currency, currency
unit, composite currency, currency index, currency basket, stock index, stock
basket, commodity or commodities index purchased or sold upon exercise of the
Warrants. Warrants will be deemed to have been exercised upon receipt of a
Warrant certificate and the required payment, if applicable, at the corporate
trust office of the Warrant Agent or any other office indicated in the
Prospectus Supplement. We will, as soon as practicable thereafter, issue and
deliver the Debt Securities purchasable upon such exercise, or purchase or sell
such Government Debt Securities or currency, currency unit, composite currency,
currency index or currency basket, stock index or stock basket, commodity or
commodities, or pay the settlement value in respect of such Warrants. If fewer
than all of the Warrants represented by a Warrant certificate are exercised, a
new Warrant certificate will be issued for the remaining amount of the Warrants.
DESCRIPTION OF CAPITAL STOCK
GENERAL
Our authorized capital stock consists of 960,000,000 shares of Common Stock
and 40,000,000 shares of preferred stock (the "Preferred Stock"). As of the date
of this Prospectus, there are 595,465,419 shares of Common Stock and no shares
of Preferred Stock outstanding.
COMMON STOCK
VOTING. Holders of Common Stock vote as a single class on all matters
submitted to a vote of the shareholders, with each share of Common Stock
entitled to one vote. In the annual election of directors, the holders of Common
Stock are not entitled to vote cumulatively.
DIVIDENDS. The holders of the Common Stock are entitled to receive such
dividends, if any, as may be declared by our Board of Directors in its
discretion out of funds legally available to be paid as dividends. Panamanian
law permits the payment of dividends to the extent of our retained earnings.
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OTHER PROVISIONS. Upon liquidation or dissolution, the holders of shares of
Common Stock are entitled to receive on a proportionate basis all of our assets
remaining for distribution to common stockholders. The Common Stock has no
preemptive or other subscription rights and there are no other conversion rights
or redemption or sinking fund provisions with respect to the shares. All shares
of Common Stock that are currently outstanding are fully paid for and may not be
assessed.
Neither Panamanian law nor our Articles of Incorporation or By-laws limit
the right of non-resident or foreign owners to hold or vote shares of the Common
Stock. While no tax treaty currently exists between the Republic of Panama and
the United States, under current law we believe that distributions to our
shareholders are not subject to taxation under the laws of the Republic of
Panama.
Under Panamanian law, our directors may vote by proxy.
The aggregate public offering price of Common Stock offered by this
Prospectus will not exceed $1,400,000,000.
PREFERRED STOCK
Our Board of Directors may issue, without further authorization from our
stockholders, up to 40,000,000 shares of Preferred Stock in one or more series.
Our Board of Directors may determine, at the time of creating each series, the
distinctive designation of, and the number of shares in, the series, its
dividend rate, the number of votes, if any, allocated to each share of the
series, the price and terms on which the shares may be redeemed, the terms of
any applicable sinking fund, the amount payable upon liquidation, dissolution or
winding up, the conversion rights, if any, and any other rights, preferences and
priorities of the shares as our Board of Directors may be permitted to fix under
the laws of the Republic of Panama in effect at the time the series is created.
The issuance of Preferred Stock could adversely affect the voting power of
holders of Common Stock and could delay, defer or prevent a change in control.
The aggregate public offering price of Preferred Stock offered by this
Prospectus will not exceed $1,000,000,000.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our Common Stock is First Union
National Bank.
SELLING STOCKHOLDERS
The selling stockholders of the Common Stock offered by this Prospectus are
Arison Foundation, Inc. (the "Foundation") and Micky Arison. We have been
informed that Micky Arison intends to make a charitable contribution of
2,000,000 shares of Common Stock to the Foundation as soon as practicable after
the date of this Prospectus. The Registration Statement also registers the
transfer of those shares to the Foundation. The Foundation may sell those shares
under this Prospectus from time to time.
The following table provides certain information regarding the beneficial
ownership of the Common Stock by the Foundation as of the date of this
Prospectus.
SHARES SHARES TO BE
BENEFICIALLY MAXIMUM BENEFICIALLY
OWNED PRIOR NUMBER OF OWNED
TO THE SHARES TO BE AFTER THE
NAME OFFERING OFFERED OFFERING
- ---------------------------------------- -------------- ------------ -----------------
Arison Foundation, Inc.................. 2,000,000 2,000,000 0
Micky Arison is our Chairman of the Board and Chief Executive Officer. He is
also the son of our founder, Ted Arison. Following the contribution of the
2,000,000 shares of Common Stock, Micky Arison will beneficially own 114,330,160
shares of Common Stock or 19.2% of the total Common Stock outstanding.
16
The Foundation is a charitable foundation. Shari Arison, the daughter of Ted
Arison, is one of our directors and the President of the Foundation. The
Foundation is directed by six trustees, a majority of whom are affiliated with
the Principal Stockholders. Each of the Principal Stockholders disclaims
ownership of the shares of Common Stock owned by the Foundation. We have agreed
to bear all expenses relating to this offering, except for fees and
disbursements of counsel for the Foundation, selling costs, underwriting
discounts and applicable filing fees.
CERTAIN RELATED TRANSACTIONS
AIRPLANE LEASE. Micky Arison, our Chairman of the Board of Directors and
Chief Executive Officer, is the indirect sole owner of a corporation which
leased an airplane to us under a long-term lease pursuant to which we paid rent
in a lump sum of $5.5 million in 1987. The amount of the lump sum payment was
based on the fair market value and the remaining useful life of the plane at the
time, as determined by an independent appraiser. Because we purchased a new
aircraft, we terminated the lease effective January 6, 1997 and received a
payment of $4,528,100 from the lessor, which amount represented unused, prepaid
rent under the lease, plus the net book value of certain improvements made by us
to the plane during the term of the lease.
CARNIVAL AIR LINES. Mr. Arison was also the indirect majority shareholder
of Carnival Air Lines, Inc. ("Carnival Air"), an airline which conducted charter
services and scheduled carrier services to Nassau, Puerto Rico and other
locations in the Caribbean from several U.S. cities and between various U.S.
cities. In September 1997, Carnival Air was merged with and became a wholly
owned subsidiary of Pan Am Corporation ("Pan Am"). As a result of the merger,
Mr. Arison became an indirect shareholder of approximately 42% of Pan Am. During
fiscal 1996 and 1997, we paid approximately $2 million and $1 million to
Carnival Air for services associated with transporting a limited number of our
cruise passengers. During fiscal 1997, we paid approximately $100,000 to Pan Am
for such services. We believe that the fees charged by Carnival Air and Pan Am
are comparable to those charged by other airlines for comparable services.
We earned license fees of approximately $480,000 during fiscal 1997 for the
license of the "Carnival" trademark to Carnival Air. In connection with the
merger, Pan Am agreed to pay us unpaid license fees owed by Carnival Air. In
connection with the merger, Pan Am agreed to discontinue the use of "Carnival"
trademarks on the promotion of its ongoing business and to proceed to eliminate
the marks from its aircraft and other equipment during its ordinary maintenance
schedule.
On February 26, 1998 and March 13, 1998, Pan Am and various of its
affiliates and subsidiaries filed voluntary petitions under Chapter 11 of the
United States Bankruptcy Code with the United States Bankruptcy Court for the
Southern District of Florida. We were a general unsecured creditor of the Pan Am
debtors in the amount of $1,639,913.87, such amount representing accrued and
unpaid licensing fees.
On June 29, 1998, the Bankruptcy Court entered an order (the "Confirmation
Order") confirming an amended joint plan of reorganization of the Pan Am debtors
(the "Plan"). The Plan contained a settlement among us, certain other creditors,
the Pan Am debtors and all creditors of the Pan Am debtors receiving
distributions under the Plan. The settlement and the Confirmation Order provided
that each of the debtors, all creditors receiving distributions under the Plan
and the Committee of Unsecured Creditors of the Debtors waived all claims
against us, Mr. Arison, Howard Frank (our Vice Chairman who was also a director
of Pan Am) and various other entities in exchange for consideration to be
received from entities other than us and our agreement to waive receipt of any
distribution under the Plan on account of our unsecured claim.
17
THE MIAMI HEAT. Mr. Arison is the Chairman and Chief Executive Officer and
the indirect sole shareholder of Florida Basketball Associates, Inc., the sole
general partner of the Miami Heat Limited Partnership ("MHLP"), the owner of the
Miami Heat, a professional basketball team. During December 1997, we entered
into a two-year sponsorship agreement with MHLP under which we agreed to pay an
aggregate of $617,356 and provide goods and services valued at $37,500 in
exchange for various sponsorship, marketing and advertising services and the use
of VIP floor boxes.
PLAN OF DISTRIBUTION
We may sell the Common Stock, Preferred Stock, Debt Securities and Warrants
to or through underwriters, and also may sell such Securities directly to one or
more other purchasers or through agents.
The selling stockholders of 2,000,000 shares of Common Stock are the
Foundation and Micky Arison. We have been informed that Micky Arison intends to
make a charitable contribution of 2,000,000 shares to the Foundation as soon as
practicable after the date of this Prospectus. The Registration Statement also
registers the transfer of these shares to the Foundation. The Foundation may
sell the Common Stock to or through underwriters, and also may sell directly to
one or more other purchasers or through agents.
A Prospectus Supplement will set forth the terms of the offering of a
particular series or issuance of Securities, including:
- the name or names of any underwriters or agents with whom we or the
Foundation has entered into arrangements with respect to the sale of the
Securities;
- the initial public offering or purchase price of the Securities;
- any underwriting discounts, commissions and other items constituting
underwriters' compensation from us or the Foundation and any other
discounts, concessions or commissions allowed or reallowed or paid by any
underwriters to other dealers;
- any commissions or other compensation paid to any agents;
- the net proceeds to us or the Foundation;
- the securities exchanges, if any, on which the Securities will be listed;
and
- any other information concerning the specific terms of the distribution.
Unless otherwise set forth in the Prospectus Supplement relating to a
particular series or issuance of Securities, the obligations of the underwriters
to purchase the Securities will be subject to certain conditions precedent and
each of the underwriters with respect to the Securities will be obligated to
purchase all of the Securities allocated to it if any of the Securities are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
The Securities may be offered and sold by us or the Foundation directly or
through agents designated by us or the Foundation from time to time. Unless
otherwise indicated in the applicable Prospectus Supplement, any such agent or
agents will be acting on a best efforts basis for the period of its or their
appointment. Any agent participating in the distribution of the Securities may
be deemed to be an "underwriter", as that term is defined in the Act, of the
Securities so offered and sold. The Securities also may be sold to dealers at
the applicable price to the public set forth in the Prospectus Supplement
relating to a particular series or issuance of Securities who later resell to
investors. Such dealers may be deemed to be "underwriters" within the meaning of
the Securities Act of 1933, as amended (the "Act").
18
Sales of Common Stock also may be effected from time to time in one or more
types of transactions (which may include block transactions, special offerings,
exchange distributions, secondary distributions or purchases by a broker or
dealer) on the NYSE or any other national securities exchange on which the
Common Stock is listed, in the over-the-counter market, in negotiated
transactions, through options transactions relating to the shares, or a
combination of such methods of sale, at market prices prevailing at the time of
sale, at negotiated prices or at fixed prices. Such transactions may or may not
involve underwriters, brokers or dealers.
If so indicated in the Prospectus Supplement relating to a particular series
or issuance of Securities, we or the Foundation will authorize underwriters or
agents to solicit offers by certain institutions to purchase Securities from us
or the Foundation pursuant to delayed delivery contracts providing for payment
and delivery at a future date. Such contracts will be subject only to those
conditions set forth in the applicable Prospectus Supplement and such Prospectus
Supplement will set forth the commission payable for solicitation of such
contracts.
Underwriters and agents may be entitled, under agreements entered into with
us or the Foundation, to indemnification by us or the Foundation against certain
civil liabilities, including liabilities under the Act.
VALIDITY OF SECURITIES
The validity of the Debt Securities and Warrants will be passed upon for us
with respect to New York law by Paul, Weiss, Rifkind, Wharton & Garrison, New
York, New York and for any underwriters or agents with respect to New York law
by Sullivan & Cromwell, New York, New York. The validity of the Securities with
respect to Panamanian law will be passed upon by Tapia Linares y Alfaro, Panama
City, Republic of Panama. James M. Dubin, a partner of Paul, Weiss, Rifkind,
Wharton & Garrison, is the sole stockholder of the trustee of the B Trust and
one of our directors. Paul, Weiss, Rifkind, Wharton & Garrison also serves as
counsel to Micky Arison. See "Risk Factors--Control by Principal Shareholders".
EXPERTS
The financial statements incorporated in this Prospectus by reference to the
Annual Report on Form 10-K for the year ended November 30, 1997 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent certified public accountants, given on the authority of said firm as
experts in auditing and accounting.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
The following cautionary statements identify important factors that could
cause our actual results to differ materially from those projected in the
forward-looking statements made in this Prospectus or incorporated by reference
in this Prospectus. Any statements about our expectations, beliefs, plans,
objectives, assumptions or future events or performance are not historical facts
and may be forward-looking. These statements are often, but not always, made
through the use of words or phrases such as "will likely result," "are expected
to," "will continue," "is anticipated," "estimated," "intends," "plans,"
"projection," and "outlook." Accordingly, these statements involve estimates,
assumptions and uncertainties which could cause actual results to differ
materially from those expressed in them. Any forward-looking statements are
qualified in their entirety by reference to the factors discussed throughout
this Prospectus. Among the key factors that have a direct bearing on our results
of operation are: general economic and business conditions which may impact
levels of disposable income of consumers and pricing and passenger yields on our
cruise products; consumer demand for cruises; pricing policies followed by our
competitors and our responses to them; increases in cruise industry capacity;
changes in tax laws and regulations (see "Risk Factors--Income Taxes"); our
ability to implement our shipbuilding program and to
19
expand our business outside the North American market where we have less
experience; delivery of our new vessels on schedule and at the contracted price;
weather patterns; computer program Year 2000 compliance; unscheduled ship
repairs and drydocking; incidents involving cruise vessels at sea; and changes
in laws and regulations applicable to us (including the implementation of the
"Safety of Life at Sea Convention" and changes in Federal Maritime Commission
surety and guaranty arrangements).
Because the risk factors referred to above could cause actual results or
outcomes to differ materially from those expressed in any forward-looking
statements made by us or on behalf of the Company, you should not place undue
reliance on any such forward-looking statements. Further, any forward-looking
statement speaks only as of the date on which it is made, and we undertake no
obligation to update any forward-looking statement or statements to reflect
events or circumstances after the date on which such statement is made or to
reflect the occurrence of unanticipated events. New factors emerge from time to
time, and it is not possible for us to predict which will arise. In addition, we
cannot assess the impact of each factor on our business or the extent to which
any factor, or combination of factors, may cause actual results to differ
materially from those contained in any forward-looking statements.
20
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR OTHER PERSON TO GIVE ANY
INFORMATION OR REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU MUST NOT
RELY ON ANY UNAUTHORIZED INFORMATION. THIS PROSPECTUS DOES NOT OFFER TO SELL OR
BUY ANY SHARES IN ANY JURISDICTION WHERE IT IS UNLAWFUL. THE INFORMATION IN THIS
PROSPECTUS IS CURRENT AS OF , 1998.
----------------
TABLE OF CONTENTS
PAGE
-----
PROSPECTUS SUPPLEMENT
Use of Proceeds................................ S-2
Underwriters................................... S-2
Validity of Securities......................... S-3
PROSPECTUS
Where You Can Find More Information............ 2
Incorporation by Reference..................... 2
The Company.................................... 3
Risk Factors................................... 4
Use of Proceeds................................ 5
Ratio of Earnings to Fixed Charges............. 5
Description of Debt Securities................. 5
Description of Warrants........................ 13
Description of Capital Stock................... 15
Selling Stockholders........................... 16
Plan of Distribution........................... 18
Validity of Securities......................... 19
Experts........................................ 19
Special Note Regarding Forward-Looking
Statements................................... 19
[LOGO]
19,000,000 SHARES
CARNIVAL
CORPORATION
COMMON STOCK
------------
PROSPECTUS
-----------------
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses payable in connection
with the issuance and distribution of the Securities being registered hereby,
other than underwriting discounts and commissions (which will be described in
the applicable Prospectus Supplement). All the amounts shown are estimates,
except the Securities and Exchange Commission registration fee. All of such
expenses are being borne by the Company.
Securities and Exchange Commission Registration Fee............... $ 278,000
Accounting Fees and Expenses...................................... 30,000
Legal Fees and Expenses........................................... 100,000
Printing and Engraving Expenses................................... 50,000
Miscellaneous Fees and Expenses................................... 17,000
---------
Total......................................................... $ 475,000
- ------------------------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Article of Incorporation and By-laws provide, subject to the
requirements set forth therein, that with respect to any person who was or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
the Company shall indemnify such person by reason of the fact that he is or was
a director or an officer, and may indemnify such person by reason of the fact
that he is or was an employee or agent of the Company or is or was serving at
its request as a director, officer, employee or agent in another corporation,
partnership, joint venture, trust or other enterprise, in either case against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The Company has entered
into indemnity agreements with Shari Arison, Maks L. Birnbach, Richard G. Capen,
Jr., David Crossland, James M. Dubin, Modesto Maidique, William S. Ruben, Stuart
Subotnick, Sherwood M. Weiser and Uzi Zucker providing essentially the same
indemnities as are described in the Company's Articles of Incorporation.
Under a registration rights agreement among the Company and certain
irrevocable trusts (the "Trusts"), the Trusts have agreed to indemnify the
Company, its directors and officers and each person who controls the Company
within the meaning of the Exchange Act, against certain liabilities. In
addition, under a registration rights agreement between the Company and Ted
Arison, Ted Arison has agreed to indemnify the Company, its directors and
officers and each person who controls the Company within the meaning of the Act
against certain liabilities.
II-1
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
1.1 -- Form of Underwriting Agreement (Incorporated by reference to the Registrant's
Registration Statement on Form S-3 (File No. 333-43269) filed with the
Securities and Exchange Commission)
1.2 -- Form of Underwriting Agreement among the Company, Bear Stearns, Goldman, Sachs
& Co., and the Foundation
3+ -- Second Amended and Restated Articles of Incorporation of the Company
4.1 -- Senior Indenture, dated March 1, 1993, between the Company and the Senior
Trustee relating to the Senior Debt Securities (Incorporated by reference to
the Registrant's Registration Statement on Form S-3 (File No. 33-53136) filed
with the Securities and Exchange Commission)
4.2 -- Form of Subordinated Indenture between the Company and Subordinated Trustee
relating to the Subordinated Debt Securities (Incorporated by reference to the
Registrant's Registration Statement on Form S-3 (File No. 333-43269) filed
with the Securities and Exchange Commission)
4.3* -- Supplemental Indenture or Officers' Certificate
4.4* -- Form of Warrant Agreement
4.5* -- Form of Securities with respect to each particular series of registered
hereunder
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
5.2 -- Opinion of Tapia Linares y Alfaro
12+ -- Ratio of Earnings to Fixed Charges
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in Exhibit 5.1)
23.3 -- Consent of Tapia Linares y Alfaro (included in Exhibit 5.2)
24+ -- Power of Attorney
25.1 -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of
the Senior Trustee to act as Trustee under the Senior Indenture (Incorporated
by reference to the Registrant's Registration Statement on Form S-3 (File No.
33-50947) filed with the Securities and Exchange Commission)
25.2* -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of
the Subordinated Trustee to act as Trustee under the Subordinated Indenture
- ------------------------
* To be incorporated by reference in connection with the offering of
Securities.
+ Previously filed.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of a prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
II-2
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering;
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(5) To file an application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act of 1939 in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Trust Indenture Act of 1939; and
(6) (i) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(ii) For purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment to
its Registration Statement to be filed on its behalf by the undersigned,
thereunto duly authorized, in the City of Miami, State of Florida, on the 18th
day of December, 1998.
CARNIVAL CORPORATION
By: /s/ HOWARD S. FRANK
-----------------------------------------
Howard S. Frank
(VICE CHAIRMAN AND CHIEF OPERATING
OFFICER)
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ----------------------------- -------------------------- -------------------
* Chairman of the Board,
- ----------------------------- Chief Executive Officer,
Micky Arison Director and Authorized
Representative
/s/ HOWARD S. FRANK Vice-Chairman, Chief December 18, 1998
- ----------------------------- Operating Officer and
Howard S. Frank Director
* Chief Financial and
- ----------------------------- Accounting Officer
Gerald R. Cahill
Director
- -----------------------------
Shari Arison
* Director
- -----------------------------
Maks L. Birnbach
* Director
- -----------------------------
Richard G. Capen, Jr.
Director
- -----------------------------
David Crossland
* Director
- -----------------------------
Robert H. Dickinson
II-4
SIGNATURE TITLE DATE
- ----------------------------- -------------------------- -------------------
* Director
- -----------------------------
James M. Dubin
* Director
- -----------------------------
A. Kirk Lanterman
* Director
- -----------------------------
Modesto A. Maidique
* Director
- -----------------------------
William S. Ruben
* Director
- -----------------------------
Stuart Subotnick
* Director
- -----------------------------
Sherwood M. Weiser
Director
- -----------------------------
Meshulam Zonis
* Director
- -----------------------------
Uzi Zucker
*By: /s/ HOWARD S. FRANK
-------------------------
Howard S. Frank
ATTORNEY-IN-FACT
Dated: December 18, 1998
II-5
EXHIBIT INDEX
1.1 -- Form of Underwriting Agreement (Incorporated by reference to the Registrant's
Registration Statement on Form S-3 (File No. 333-43269) filed with the
Securities and Exchange Commission)
1.2 -- Form of Underwriting Agreement among the Company, Bear Stearns, Goldman, Sachs
& Co., and the Foundation
3+ -- Second Amended and Restated Articles of Incorporation of the Company
4.1 -- Senior Debt Indenture, dated March 1, 1993, between the Company and the Senior
Trustee relating to the Senior Securities (Incorporated by reference to the
Registrant's Registration Statement on Form S-3 (File No. 33-53136) filed with
the Securities and Exchange Commission)
4.2 -- Form of Subordinated Debt Indenture between the Company and Subordinated
Trustee relating to the Subordinated Securities (Incorporated by reference to
the Registrant's Registration Statement on Form S-3 (File No. 333-43269) filed
with the Securities and Exchange Commission)
4.3* -- Supplemental Indenture or Officers' Certificate
4.4* -- Form of Warrant Agreement
4.5* -- Form of Securities with respect to each particular series of registered
hereunder
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
5.2 -- Opinion of Tapia Linares y Alfaro
12+ -- Ratio of Earnings to Fixed Charges
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in Exhibit 5.1)
23.3 -- Consent of Tapia Linares y Alfaro (included in Exhibit 5.2)
24+ -- Power of Attorney
25.1 -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of
the Senior Trustee to act as Trustee under the Senior Indenture (Incorporated
by reference to the Registrant's Registration Statement on Form S-3 (File No.
33-50947) filed with the Securities and Exchange Commission)
25.2* -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of
the Subordinated Trustee to act as Trustee under the Subordinated Indenture
- ------------------------
* To be incorporated by reference in connection with the offering of
Securities.
+ Previously filed.
Exhibit 1.2
CARNIVAL CORPORATION
COMMON STOCK
_________________________
UNDERWRITING AGREEMENT
[Date]
Bear, Stearns & Co. Inc.,
Goldman, Sachs & Co.,
As representatives of the several Underwriters
named in Schedule II hereto,
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
Carnival Corporation, a Panama corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, an aggregate of 17,000,000
shares of Common Stock, par value $0.1 per share ("Stock") of the Company and
the stockholders of the Company named in Schedule V hereto (the "Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of 2,000,000 shares of Stock. The
aggregate of 19,000,000 shares to be sold by the Company and the Selling
Stockholders is herein called the "Shares."
1. REPRESENTATIONS AND WARRANTIES. (A) The Company 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 additional 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 prospectus 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 offering
thereof. As filed, such final prospectus supplement or such amendment and form
of final prospectus 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 additional 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
2
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 the 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, 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, or 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,
shareholders' 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 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
Prospectus, such as are identified on Schedule III or IV hereof or such as
in the aggregate 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; and any real property and
buildings held under lease by the Company or any of the Subsidiaries are
held by it under valid, subsisting and enforceable leases with such
exceptions described in the Final Prospectus or such
3
exceptions that in the aggregate 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, authorizations, 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 aggregate, 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), 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; the
unissued Shares to be issued and sold by the Company to the Underwriters
hereunder have been duly authorized and, when issued and delivered against
payment therefor as provided herein, will be validly issued and fully paid
and non-assessable and will conform to the description of the Stock
incorporated by reference in the Prospectus;
(g) The Company has all requisite power and authority to execute,
deliver and perform this 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. The issue and sale of the
Shares and the compliance by the Company with all of the provisions of this
Agreement, and the consummation of the transactions herein 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 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
4
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 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 Agreemen,
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;
(h) 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;
(i) 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;
(j) 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 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
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
5
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;
(k) 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 operating. 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;
(l) 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
jurisdiction listed opposite its name on Schedule IV hereto;
(m) The Company is not an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and
(n) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to which
the business or operations of the Company or any of its subsidiaries will
be affected by the Year 2000 Problem. As a result of such review, the
Company has no reason to believe, and does not believe, that the Year 2000
Problem will have a material adverse effect on the general affairs,
business, financial conditions, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, or result
in any material loss or interference with the Company's business or
operations. The "Year 2000 Problem" as used herein means any significant
risk that computer hardware or software used in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data or in the operation of mechanical or electrical systems
of any kind will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of dates
or time periods occurring prior to January 1, 2000;
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
Prospectus" shall mean the prospectus referred to in paragraph (a) above
contained in the Registration
6
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 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 Time of Delivery (as defined in Section 4 hereof), shall also mean such
registration statement as so amended. Such term 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 represents and
warrants to, and agrees with, each of the Underwriters and the Company that:
(a) All consents, approvals, authorizations and orders, if any,
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 consents, approvals, authorizations and
orders, the violations of 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
7
taken as a whole or on the ability 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 Agreement, 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;
(b) 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 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
indenture, mortgage, deed of trust, 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, subject, however, to conflicts,
breaches or violations which individually or in the aggregate would not
have a material adverse effect on the business, financial condition or
results of operations of such Selling Stockholder or the Company and its
subsidiaries taken as a whole or on the ability of the Underwriters to
receive good and valid title to the Shares being sold hereunder, 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 Time
of Delivery (as defined in Section 4 hereof), when such Selling Stockholder
is selling Shares hereunder, 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) 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;
(e) 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
8
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;
(f) 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 Time of Delivery (as defined in Section 4 hereof) a properly completed
and executed United States Treasury Department Form W-8 or W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof);
(g) 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
Paul, Weiss, Rifkind, Wharton & Garrison 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 James M. Dubin and Kevin J. O'Brien, and each of
them, as such Selling Stockholder's attorneys-in-fact (each an
"Attorney-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 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 and the Custody Agreement; and
(h) 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; 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 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
9
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 warranties herein set forth, the Company
and each of the Selling Stockholders agree, severally and not jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and each of the Selling Stockholders,
at a purchase price per share as set forth in Schedule I hereto, the number of
Shares (to be adjusted by you so as to eliminate fractional shares) determined
by multiplying the aggregate number of Shares to be sold by each of 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 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
Shares to be purchased by all of the Underwriters from all of the Selling
Stockholders hereunder.
3. OFFERING OF SHARES. Upon the authorization by you of the release
of the Shares, the several Underwriters propose to offer the Shares for sale
upon the terms and conditions set forth in the Final Prospectus.
4. DELIVERY AND PAYMENT. Delivery of and payment for the 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
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Shares being herein called the "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 wire transfer 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 two full business days in advance of
the Time of Delivery for such Shares.
Each of the Selling Stockholders agrees to have the 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.
The Specified Selling Stockholders agree 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. 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) unless the Company has
furnished to you a copy for your prompt review prior to filing and will not
file any such proposed amendment
10
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 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 supplement 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 Registration 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 institution 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 threatening 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 circumstances 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
provisions 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, prior to 10:00 a.m., New York City time,
on the New York Business Day next succeeding the date of this Agreement and
from time to time, copies of 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. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
11
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters, as to the Shares to be delivered at the 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 the 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 the Time of Delivery, to the effect that:
(i) This Agreement has 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 or this 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;
(iii) The first sentence of the first paragraph and the first
and second sentences of the second paragraph of the section of the
Final Prospectus relating to the Shares captioned "Risk Factors --
Income Taxes" contain a fair and accurate general description of the
U.S. Federal tax provisions discussed therein;
(iv) Assuming that New York law is applicable, upon delivery of
the Shares pursuant to this Agreement and payment therefor as
contemplated herein, 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 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;
12
(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 the 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 the 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 the 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 supplement thereto made by the Company
prior to the 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 the Time of Delivery,
the Final Prospectus or any further amendment or supplement thereto
made by the Company prior to the 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
13
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 Registration 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 Arnaldo Perez, Esq., General Counsel for the Company, dated the 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, authorizations, 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
subsidiaries, 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, 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
subsidiaries, taken as a whole);
(iii) Each of the Subsidiaries 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);
(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;
14
(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 Company or any of its Subsidiaries is
a party or of which any property of the Company or any of its
Subsidiaries 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 consummation
of the transactions herein 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
Subsidiaries 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 disclosed 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 the
Time of Delivery, to the effect that:
15
(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;
(ii) This Agreement has 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 the Shares, or the consummation by
the Company of the transactions contemplated by this 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;
(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 the 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 in 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 Underwriters 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 the 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
16
(ii) All of the issued shares of capital stock of HAL have been
duly and validly authorized and issued, and are fully paid.
Each such opinion described in 6(b), (c), (d) and (e) above shall be
in form and substance reasonably satisfactory to the Representatives. In
rendering such opinions described in 6(b), (c), (d) and (e) above, each
such counsel may rely (A) as to matters involving the application 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 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
the Time of Delivery.
(f) 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 Time of Delivery, in form and
substance 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, subject to bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally and general
equitable principles;
(ii) This Agreement has 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 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 material 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 Stockholder
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, except
17
that such counsel need express no opinion as to compliance with the
Act or any state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters;
(iii) To the knowledge of such counsel, 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 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;
(g)___________, special U.S. counsel to the Selling Stockholders,
shall have furnished to you their written opinion, dated the Time of
Delivery, in form and substance reasonably satisfactory to you, to the
effect that:
(i) Immediately prior to the Time of Delivery, such Selling
Stockholder had good and valid title to the Shares to be sold at the
Time of Delivery by such Selling Stockholder under this 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 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 the 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.
18
(j) The Company shall have furnished to the Underwriters a
certificate of the Company, dated the 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 Time of Delivery at which such Selling
Stockholder is delivering Shares, certificates of the Selling Stockholders,
respectively, dated the 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 the 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 the 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
the Time of Delivery with the same effect as if made on the 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 the Time of Delivery;
(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 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 the 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 the Time of Delivery, in form and substance satisfactory to the
Representatives, 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
19
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 issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of
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 consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current 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 Prospectus do not agree with the amounts
set forth in the unaudited financial
20
statements for the same periods or were not determined on a basis
substantially 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 statements, 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.
References to the Final Prospectus in this paragraph (j) 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 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
21
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 the Time of Delivery, the Company and the Selling
Stockholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
(o) 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 limitation 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 escalation 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 the Time of Delivery on the terms and in the
manner contemplated by the Prospectus.
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 Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the 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
22
be terminated as provided herein, the Selling Stockholders shall not have any
liability to the Underwriters except as provided in Section 8 hereof.
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 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 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 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
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, 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 registration of the Shares as
originally filed or in any amendment thereof, or in the Basic Prospectus, any
Preliminary
23
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; and, PROVIDED, FURTHER,
that such Selling Stockholder 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 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 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.
24
(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 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 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 Stockholder within the meaning 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).
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
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
25
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, the 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 Holland & Knight, 701 Brickell Avenue, Miami, Florida
33131 with copies to MacFarlanes, 10 Norwich Street, London EC4A 1BD England;
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.
26
12. SUCCESSORS. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and the Selling
Stockholders and, to the extent provided in Section 8 hereof, the officers and
directors and each person who controls the Company, any Selling Stockholder or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
13. APPLICABLE LAW. THIS AGREEMENT SHALL 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.
27
If the foregoing is in accordance with your understanding 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:
Arison Foundation, Inc.
By:
----------------------------
Name:
Title:
As Attorney-in-Fact acting on
behalf of each of the Selling
Stockholders named in Schedule V to
this Agreement.
2
Accepted as of the date hereof:
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
By:
--------------------------
(Bear, Stearns & Co. Inc.)
On behalf of each of the Underwriters
29
SCHEDULE I
Underwriting Agreement dated ____________, 1998
Registration Statement No. 33-50947 and 333-68999
Representative(s): Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Title, Purchase Price and Description of Shares:
Title: Common Stock, par value $.01 per share
Number of shares: _______________
Purchase price per share: $
Closing Date, Time and Location: ___________, 1998, 9:30 a.m., Sullivan &
Cromwell, 125 Broad Street, New York, New York
Specified Funds for Payment of Purchase Price: same-day funds
Type of Offering:
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 Shares
Underwriter to be Purchased
----------- ---------------------------
Bear, Stearns & Co. Inc. ...................
Goldman, Sachs & Co. .......................
Total
1
SCHEDULE III
Capital
Stock
Subsidiary Ownership
- ---------- ---------
Carnival Corporation ("CCL") . . . . . . . . . . . . . . . . . . . . . _____
HAL Antillen N.V. ("HAL"). . . . . . . . . . . . . . . . . . . . . . . CCL
Celebration Cruises Inc. . . . . . . . . . . . . . . . . . . . . . . . CCL
Wind Surf Limited. . . . . . . . . . . . . . . . . . . . . . . . . . . HAL
Windstar Limited . . . . . . . . . . . . . . . . . . . . . . . . . . . WSCL
Wind Spirit Limited. . . . . . . . . . . . . . . . . . . . . . . . . . WSCL
Windstar Sail Cruises Limited ("WSCL") . . . . . . . . . . . . . . . . HAL
Futura Cruises, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . CCL
Utopia Cruises Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . CCL
Cunard Line Limited ("CLL"). . . . . . . . . . . . . . . . . . . . . . CCL
Cunard White Star Limited. . . . . . . . . . . . . . . . . . . . . . . CLL
1
SCHEDULE IV
Jurisdiction of
Vessels Registration Liens
------- --------------- -----
I. Carnival Cruise Lines
1. Celebration . . . . . . . . Liberia First Preferred Ship Mortgage in
favor of the Swedish National Dept
Office.
2. Jubilee . . . . . . . . . . Panama None.
3. Tropicale . . . . . . . . . Liberia None.
4. Fantasy . . . . . . . . . . Liberia First Preferred Ship Mortgage of
Finnish Export Credit Limited.
5. Festivale . . . . . . . . . Bahamas None.
6. Holiday . . . . . . . . . . Panama None.
7. Ecstasy . . . . . . . . . . Liberia First Preferred Ship Mortgage in
favor of Finnish Export Credit
Limited.
8. Sensation . . . . . . . . . Panama None.
9. Fascination . . . . . . . . Panama None.
10. Inspiration . . . . . . . . Panama None.
11. Imagination . . . . . . . . Panama None.
12. Carnival Destiny. . . . . . Panama None.
II. Holland America Line
1. Westerdam . . . . . . . . . Netherlands Mortgage in favor of Kreditanstalt
fur Wiederaufbau.
2. Noordam . . . . . . . . . . Netherlands None.
3. Nieuw Amsterdam . . . . . . Netherlands None.
1
4. Rotterdam . . . . . . . . . Netherlands None.
5. Statendam . . . . . . . . . Bahamas None.
6. Maasdam . . . . . . . . . . Bahamas None.
7. Ryndam. . . . . . . . . . . Bahamas None.
8. Veendam . . . . . . . . . . Bahamas None.
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
Exhibit 5.1
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 Avenue of the Americas
New York, New York 10019
December 18, 1998
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178
Registration Statement on Form S-3
Registration No. 333-68999
Ladies and Gentlemen:
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 under the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations under the Act, we have been
requested to render our opinion as to the legality of the securities being
registered. The Registration Statement relates to the registration under the Act
of (i) the Company's senior debt securities ("Senior Debt Securities") and
subordinated debt securities ("Subordinated Debt Securities" and, together with
the Senior Debt Securities, the "Debt Securities"), consisting of notes,
debentures and/or other evidences of indebtedness denominated in United States
dollars or any other currency, (ii) the Company's Warrants (the "Warrants" and,
collectively with the Debt Securities, the "Securities"), (iii) shares of
Preferred Stock (including shares issued upon conversion of Debt Securities) of
the Company, par value $.01 per share (the "Preferred Stock"), and (iv) shares
of the
Carnival Corporation 2
Common Stock (including shares to be issued upon conversion of the Debt
Securities or the Preferred Stock) of the Company, par value $.01 per share
(the "Common Stock"). The Securities, the Preferred Stock and the Common
Stock are being registered for offering and sale from time to time. The
aggregate public offering price of the Securities, Preferred Stock and Common
Stock will not exceed $1,000,000,000 (or its equivalent (based on the
applicable exchange rate at the time of sale) if Securities, Warrants or
shares of Preferred Stock are issued with principal amounts or liquidation
value denominated in one or more foreign currencies or currency units as
shall be designated by the Company).
The Senior Debt Securities are to be issued under an Indenture, dated
as of March 1, 1993, between the Company and First Trust National Association
("First Trust"), as Trustee (the "Senior Debt Indenture"). The Subordinated Debt
Securities are to be issued under an indenture to be entered into between the
Company and the trustee under it (the "Subordinated Debt Indenture" and,
together with the Senior Debt Indenture, the "Indentures"). The Warrants are to
be issued under either a warrant agreement relating to Warrants to purchase Debt
Securities or a warrant agreement relating to other types of Warrants, each
between the Company, as issuer, and a warrant agent (collectively, the "Warrant
Agreements").
In this connection we have examined (i) originals, photocopies or
conformed copies of the Registration Statement (including the exhibits and
amendments
Carnival Corporation 3
to it), (ii) the forms of the Indentures filed as exhibits to the Registration
Statement, and (iii) records of certain of the Company's corporate proceedings
relating, among other things, to the proposed issuance and sale of the
Securities, the Preferred Stock and the Common Stock. In addition, we have made
those other examinations of law and fact as we considered necessary in order to
form a basis for our opinion. In connection with such investigation, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as photocopies or conformed copies and the legal capacity of
natural persons executing the documents, none of which facts we have
independently verified. We have relied as to matters of fact upon certificates
of officers of the Company.
In rendering the opinion set forth below, we have assumed that (i) the
Company has been duly organized and is validly existing in good standing under
the laws of the Republic of Panama, (ii) the Company has the legal power and
authority to enter into and perform its obligations under the Indentures, the
Warrant Agreements and the Securities, (iii) the execution, delivery and
performance by the Company of the Indentures, the Warrant Agreements and the
Securities will not conflict with or violate the charter or by-laws of the
Company, the laws of Panama or the terms of any agreement or instrument to which
the Company is subject, (iv) the Senior Debt Indenture has been duly authorized,
executed and delivered by the parties to it, (v) the
Carnival Corporation 4
Subordinated Debt Indenture shall have been duly authorized, executed and
delivered by the parties to it in substantially the form filed as an exhibit to
the Registration Statement, (vi) the Senior Debt Indenture does, and the
Subordinated Debt Indenture, when so executed and delivered, will, represent a
valid and binding obligation of the appropriate trustee under the laws of its
jurisdiction of incorporation and the State of New York and of the Company under
the laws of the Republic of Panama, (vii) the Warrant Agreements will be duly
authorized, executed and delivered by the parties to them, and (ix) the Warrant
Agreements, when so executed and delivered, will represent a valid and binding
obligation of the parties to them. We have also assumed, with respect to the
Securities of a particular series or issuance offered (the "Offered
Securities"), that (i) the terms of issue and sale of the Offered Securities
shall have been duly established in accordance with the appropriate Indenture or
Warrant Agreement, as the case may be, (ii) the Offered Securities shall have
been duly authorized, issued and delivered by the Company and duly authenticated
by the Trustee or Warrant Agent, as the case may be, all in accordance with the
terms of the appropriate Indenture or Warrant Agreement, as the case may be, and
against payment by the purchasers at the agreed consideration and (iii) the
Offered Securities, when so issued, authenticated, delivered and sold, will
represent valid and binding obligations of the Company under the laws of the
Republic of Panama. With regard to such
Carnival Corporation 5
assumptions, we refer you to the opinion of Tapia, Linares y Alfaro, Panamanian
counsel to the Company, filed as Exhibit 5.2 to the Registration Statement.
Based on the foregoing, we are of the opinion that, when issued,
authenticated and delivered, the Offered Securities will be legal, valid and
binding obligations of the Company under the laws of the State of New York
enforceable against the Company in accordance with their respective terms,
except as enforceability may be limited by (a) bankruptcy, insolvency,
fraudulent conveyance or transfer, reorganization, moratorium and other similar
laws affecting creditors' rights generally, (b) subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) and (c) requirements that a claim with respect to any Offered
Securities denominated other than in United States dollars (or a judgment
denominated other than in United States dollars in respect of the claim) be
converted into United States dollars at a rate of exchange prevailing on a date
determined by applicable law.
Our opinions expressed above are limited to the laws of the State of
New York and the federal laws of the United States of America. Our opinions are
rendered only with respect to the laws, and the rules, regulations and orders
under them, that are currently in effect.
Carnival Corporation 6
We hereby consent to the use of our name in the Registration
Statement, and in the prospectus and the prospectus supplement in the
Registration Statement as it appears in the caption "Validity of Securities"
and to the use of this opinion as an exhibit to the Registration Statement.
In giving this consent, we do not admit that we come within the category of
persons whose consent is required by the Act or by the rules and regulations
under it.
Very truly yours,
/s/ PAUL, WEISS, RIFKIND, WHARTON & GARRISON
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
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Registration Statement - Form S-3 (1998).doc Page 1
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Exhibit 5.2
Panama, December 18, 1998.
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178-2428
S.A.
Registration Statement on Form S-3
Registration No. 333-68999
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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, we have been requested to render our opinion as to the legality
of the securities being registered thereunder. The Registration Statement
relates to the registration under the Act of (i) the Company's senior debt
securities ("Senior Debt Securities") and subordinated debt securities
("Subordinated Debt Securities" and, together with the Senior Debt
Securities, the "Debt Securities"), consisting of notes, debentures and/or
other evidences of indebtedness denominated in United States dollars or any
other currency, (ii) the Company's Warrants (the "Warrants"), (iii) shares of
Common Stock (including shares to be issued upon conversion of the Debt
Securities) of the Company, par value $.01 per share (the "Common Stock"),
and (iv) shares of Preferred Stock (including shares to be issued upon
conversion of the Debt Securities) of the Company, par value $.01 per share
(the "Preferred Stock" and, together with the Debt Securities, Warrants and
Common Stock, the "Securities"). The Securities, the Common Stock and the
Preferred Stock are being registered for offering and sale from time to time
pursuant to Rule 415 under the Act. The aggregate public offering price of
the Securities, the Common Stock and the Preferred Stock will not exceed
$1,000,000,000 or its equivalent (based on the applicable exchange rate at
the time of sale) if Debt Securities or Warrants are issued with principal
amounts denominated in one or more foreign currencies or currency units as
shall be designated by the Company.
The Senior Debt Securities are to be issued under an Indenture, dated as of
March 1,
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Registration Statement - Form S-3 (1998).doc Page 2
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1993, between the Company and First Trust National Association ("First
Trust"), as Trustee (the "Senior Debt Indenture"). The Subordinated Debt
Securities are to be issued under an indenture to be entered between the
Company and the Trustee thereunder (the "Subordinated Debt Indenture" and,
together with the Senior Debt Indenture, the "Indentures"). The Warrants are
to be issued pursuant to either a warrant agreement relating to Warrants to
purchase Debt Securities or a warrant agreement relating to purchase Debt
Securities or a warrant agreement relating to purchase other types of
Warrants, each between the Company, as issuer, and a warrant agent
(collectively, the "Warrant Agreements").
In this connection we have examined (i) originals, photocopies or conformed
copies of the Registration Statement, including the exhibits and amendments
thereto, (ii) the forms of the Indentures filed as exhibits to the
Registration Statement, and (iii) records of certain of the Company's
corporate proceedings relating to, among other things, the proposed issuance
and sale of the Securities, the Common Stock and the Preferred Stock. In
addition, we have made such other examinations of law and fact as we
considered necessary in order to form a basis for the opinion 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, 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.
In rendering the opinion set forth below, we have assumed that (i) the Senior
Debt Indenture has been duly authorized by the parties thereto other than the
Company, and has been executed and delivered by First Trust, (ii) the
Subordinated Debt Indenture shall have been executed and delivered by the
parties thereto other than the Company in substantially the form filed as an
exhibit to the Registration Statement, (iii) the Senior Debt Indenture does,
and the Subordinated Debt Indenture, when so executed and delivered, will,
represent a valid and binding obligation of the appropriate trustee under the
law of its jurisdiction of incorporation and the State of New York, (iv) the
Warrant Agreements will be duly authorized, executed and delivered by the
parties thereto, and (v) the Warrant Agreements, when so executed and
delivered, will represent a valid and binding obligation of the appropriate
thereunder Warrant Agent under the laws of its jurisdiction of incorporation
and the State of New York. We have also assumed that the Securities, except
shares of Common Stock and Preferred Stock, of a particular issuance offered
will be duly executed, issued, authenticated and delivered, and sold as
described in the Registration Statement.
Based on the foregoing, we are of the opinion that:
1. The execution and delivery of the Indentures and Warrant Agreements, the
performance of the Company's obligations hereunder, the execution,
issuance and delivery of the Senior Debt Securities, Subordinated Debt
Securities and Warrants, as applicable, and the performance of the
Company's obligations thereunder have been duly authorized by the
Company.
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Registration Statement - Form S-3 (1998).doc Page 3
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2. The Indentures, when duly executed and delivered, and the Senior Debt
Securities and Subordinated Debt Securities, as applicable, when duly
issued, authenticated, delivered and paid for, as contemplated in the
Registration Statement and in accordance with the terms of the respective
Indenture, will represent valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, except that such enforceability may be subject to (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws affecting creditors' rights generally, (b) general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and, (c) requirements
that a claim with respect to any Debt Securities or Convertible Debt
Securities denominated other than in United States dollars (or a
judgment denominated other than in United States dollars in respect of
such claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law.
3. The Warrant Agreements, when duly executed and delivery, and the
Warrants when duly issued, authenticated, delivered and paid for, as
contemplated in the Registration Statement and in accordance with the
terms of the respective Warrant Agreement, will represent valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except that such enforceability
may be subject to (a) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting creditors'
rights generally, (b) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law)
and, (c) requirements that a claim with respect to any Warrants
denominated other than in United States dollars (or a judgment
denominated other than in United States dollars in respect of such
claim) be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law.
4. The shares of Common Stock, when issued and sold as contemplated in the
Registration Statement and any prospectus supplement relating thereto,
against payment of the consideration fixed therefor by the Board of
Directors or a committee thereof, will be duly authorized, validly
issued, fully paid and nonassessable.
5. The Shares of Preferred Stock, when issued and sold as contemplated in
the Registration Statement and any applicable prospectus supplement and
the provisions of an applicable Certificate of Designation that has been
duly adopted by the Board of Directors and duly filed in accordance with
Panama law and against payment of the consideration fixed therefor by
the Board of Directors or a duly authorized committee thereof, and
assuming that the Company at such time has a sufficient number of
authorized but unissued shares of Preferred Stock
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Registration Statement - Form S-3 (1998).doc Page 4
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remaining under its Second Amended and Restated Articles of
Incorporation, will be validly issued and fully paid and nonassessable.
6. The shares of Common Stock and Preferred Stock issuable upon conversion
of the Debt Securities will be duly authorized and reserved for issuance
and will be validly issued, fully paid and nonassessable, assuming the
execution, authentication, issuance and delivery of the Debt Securities
and conversion of the Debt Securities in accordance with the terms of
the Senior Debt Indenture or any Supplement or Officers' Certificate
thereto.
7. Neither distributions to the holders of shares of Common Stock or
Preferred Stock nor the interest paid on the Debt Securities will be
subject to taxation under the laws of Panama. Also, the Company's income
will not be subject to significant taxation under the laws of Panama, as
long as the Company's income is produced outside the territory 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 hereby consent to the use of our name in the Registration Statement and in
the Prospectus therein as the same appears in the caption "Validity of
Securities" and to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not thereby admit that we come
within the category of persons whose consent is required by the Act or by the
rules and regulations promulgated thereunder.
Yours very truly,
/s/ Mario E. Correa
Mario E. Correa
MEC/ytg
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Amendment No. 1 to Registration Statement on Form S-3
of our report dated January 19, 1998, which appears on page 30 of the 1997
Annual Report to Shareholders of Carnival Corporation, which is incorporated by
reference in Carnival Corporation's Annual Report on Form 10-K for the year
ended November 30, 1997. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
PricewaterhouseCoopers LLP
Miami, Florida
December 18, 1998
