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Filing under Rule 425 under
the Securities Act of 1933
and deemed filed under Rule 14d-2
of the Securities Exchange Act of 1934
Filing by: Carnival Corporation
Subject Company: P&O Princess Cruises plc.
SEC File No. of Princess: 001-15136
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN OR INTO
AUSTRALIA, CANADA OR JAPAN
1 February 2002
CARNIVAL CORPORATION
- --------------------------------------------------------------------------------
ADJOURN THE P&O PRINCESS EGM
SUMMARY
o Carnival wishes to clarify the position for P&O Princess Shareholders
regarding their rights as shareholders to adjourn the EGM on 14 February
2002.
o Carnival has been advised by its legal advisors, Herbert Smith and Paul,
Weiss, Rifkind, Wharton & Garrison, that P&O Princess Shareholders can
adjourn the EGM without losing the Royal Caribbean Proposal or triggering
the break fee.
o Independent legal opinion from Shearman & Sterling, a leading firm of US
corporate lawyers, confirms this position and is attached.
o P&O Princess Shareholders should seek an adjournment of the EGM until after
the antitrust reviews of both proposals are complete.
o Any P&O Princess Shareholder present in person can propose or second an
adjournment motion. A holding of only one share is needed to do so.
o By voting to adjourn the EGM, P&O Princess Shareholders retain the option
to decide between the Royal Caribbean Proposal and Carnival's Revised Offer
on their merits once the regulatory position is clarified.
EFFECT OF AN ADJOURNMENT ON THE ROYAL CARIBBEAN PROPOSAL
P&O Princess Shareholders have not received information from their board on
their rights as shareholders to adjourn the EGM. Carnival has been advised that
an adjournment, if proposed and approved by P&O Princess Shareholders, does not
entitle Royal Caribbean to abandon its proposal unless it is prepared to breach
its agreement with P&O Princess. Such a breach would expose Royal Caribbean to
paying damages for breach of contract, likely to be at least $62.5 million.
Carnival's advisers have obtained the attached independent legal opinion from
Shearman & Sterling to confirm that an adjournment, if proposed and approved by
P&O Princess Shareholders, does not entitle Royal Caribbean to abandon it
proposal.
PROCESS FOR ADJOURNING THE EGM
The process for adjourning the EGM is as follows:
o A resolution calling for the adjournment should be proposed at the
beginning of the meeting. This will be considered immediately, before the
resolutions to approve the Royal Caribbean Proposal are put to the meeting.
o A motion for an adjournment can be proposed by any one shareholder present
in person, including in the case of a corporate shareholder, through a duly
appointed corporate representative. A holding of only one share is needed
to do so. A proxy holder is not able to speak at the meeting (other than in
relation to a demand for a poll) and may not therefore propose the motion.
o To be passed, the resolution for an adjournment requires the approval of a
majority of the votes cast by those shareholders present at the meeting
either in person (including by corporate representative) or by proxy.
o The Chairman of the meeting will have discretion as to whether to put the
adjournment resolution to the meeting on a show of hands or to call for a
poll. If the Chairman of the meeting does not call for a poll, five
shareholders present at the meeting in person or by proxy can call for a
poll either before or after the resolution for an adjournment is put to a
vote on a show of hands.
o If a show of hands is selected, each shareholder present (excluding
shareholders present by proxy) will have one vote.
o On a poll, a shareholder will have one vote for each share held. If the
resolution to adjourn is passed, the EGM is immediately adjourned.
o Passing the resolution will require a simple majority of those voting.
o The meeting can either be adjourned until a future date or until an
unspecified date (`sine die') in which case at least seven days notice is
required to reconvene the subsequent meeting.
ACTION BY P&O PRINCESS SHAREHOLDERS
Shareholders have two options in order to register their vote in favour of an
adjournment.
o Shareholders can attend the meeting in person.
All shareholders are entitled to attend the meeting in person and are
encouraged to do so. Corporate shareholders are encouraged to attend in
person. Carnival encourages corporate shareholders to arrange for corporate
representative letters to be executed.
o Voting by Proxy
Carnival has today posted a document to P&O Princess Shareholders together
with a blue form of proxy. This form gives P&O Princess Shareholders the
opportunity to appoint a proxy to vote in favour of the adjournment
resolution. Given that the P&O Princess Board has repeatedly refused to
engage in discussions with Carnival, Carnival believes it is appropriate
for P&O Princess Shareholders to appoint a proxy who is not associated with
P&O Princess. P&O Princess Shareholders are urged to complete the blue form
of proxy giving instructions to vote in favour of the adjournment and
return it in accordance with the instructions set out on the blue form of
proxy.
P&O Princess Shareholders are also urged to vote against the Royal Caribbean
Proposal, either in person or by instructing the proxy to vote against the Royal
Caribbean Proposal by ticking the "Against" boxes on the form of proxy.
MICKY ARISON, THE CHAIRMAN AND CHIEF EXECUTIVE OF CARNIVAL, COMMENTED:
"P&O PRINCESS SHAREHOLDERS SHOULD NOT ALLOW THEIR BOARD TO CONTINUE TO MISLEAD
THEM ON THE ISSUE OF THE EGM NOR FORCE TO THEM TO MAKE A DECISION BETWEEN THE
ROYAL CARIBBEAN PROPOSAL AND CARNIVAL'S REVISED OFFER UNTIL THE OUTCOME OF THE
REGULATORY REVIEWS OF BOTH PROPOSALS ARE KNOWN.
IF SHAREHOLDERS VOTE TO ADJOURN, ROYAL CARIBBEAN CANNOT ABANDON ITS PROPOSAL
UNLESS IT IS PREPARED TO BREACH ITS AGREEMENT WITH P&O PRINCESS. FOR THE P&O
PRINCESS BOARD TO SUGGEST ANYTHING TO THE CONTRARY IS A DISSERVICE TO THEIR
SHAREHOLDERS.
IF P&O PRINCESS SHAREHOLDERS VOTE FOR THE ROYAL CARIBBEAN PROPOSAL, THEY WILL
LOSE THE SUPERIOR VALUE PROVIDED BY CARNIVAL'S REVISED OFFER."
ENQUIRIES:
CARNIVAL Telephone: +1 305 599 2600
Micky Arison
Howard Frank
MERRILL LYNCH Telephone: +44 20 7628 1000
Philip Yates
James Agnew
Stuart Faulkner
UBS WARBURG Telephone: +44 20 7567 8000
Tom Cooper
Alistair Defriez
FINANCIAL DYNAMICS Telephone: +44 20 7831 3113
Nic Bennett
Scott Fulton
Terms used in this announcement have the same meaning as in the Announcement
dated 30 January 2002.
The directors of Carnival accept responsibility for the information contained in
this announcement. To the best of the knowledge and belief of the directors of
Carnival (who have taken all reasonable care to ensure such is the case), the
information contained herein for which they accept responsibility is in
accordance with the facts and does not omit anything likely to affect the import
of such information except that the only responsibility accepted by them for the
information in this announcement relating to P&O Princess and Royal Caribbean
which has been compiled from published sources is to ensure that the information
has been correctly and fairly reproduced and presented.
Merrill Lynch International and UBS Warburg Ltd., a subsidiary of UBS AG, are
acting as joint financial advisors and joint corporate brokers exclusively to
Carnival and no-one else in connection with the Revised Offer and will not be
responsible to anyone other than Carnival for providing the protections afforded
to clients respectively of Merrill Lynch International and UBS Warburg Ltd. as
the case may be or for providing advice in relation to the Revised Offer.
SHAREHOLDER DISCLOSURE OBLIGATIONS
Any person who, alone or acting together with any other person(s) pursuant to an
agreement or understanding (whether formal or informal) to acquire or control
securities of P&O Princess or Carnival, owns or controls, or become the owner or
controller, directly or indirectly of 1 per cent. or more of any class of
securities of P&O Princess or Carnival is generally required under the
provisions of Rule 8 of the City Code to notify the London Stock Exchange and
the Panel of every dealing in such securities during the period from the date of
16 December 2001 until the first closing date of the Revised Offer or, if later,
the date on which the Revised Offer becomes, or is declared, unconditional as to
acceptances or lapses.
Disclosure should be made on an appropriate form before 12 noon (London time) on
the business day following the date of the dealing transaction. These
disclosures should be sent to the Company Announcements Office of the London
Stock Exchange (fax number: +44 20 7588 6057) and to the Panel (fax number: +44
20 7256 9386).
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this announcement constitute "forward-looking statements"
within the meaning of the US Private Securities Litigation Reform Act of 1995.
Carnival has tried, wherever possible, to identify such statements by using
words such as "anticipate," "assume," "believe," "expect," "intend," "plan" and
words and terms of similar substance in connection with any discussion of future
operating or financial performance. These forward-looking statements, including
those which may impact the forecasting of Carnival's net revenue yields, booking
levels, price, occupancy or business prospects, involve known and unknown risks,
uncertainties and other factors, which may cause Carnival's actual results,
performances or achievements to be materially different from any future results,
performances or achievements expressed or implied by such forward-looking
statements. Such factors include, among others, the following: general economic
and business conditions which may impact levels of disposable income of
consumers and the net revenue yields for Carnival's cruise products; consumer
demand for cruises and other vacation options; other vacation industry
competition; effects on consumer demand of armed conflicts, political
instability, terrorism, the availability of air service and adverse media
publicity; increases in cruise industry and vacation industry capacity;
continued availability of attractive port destinations; changes in tax laws and
regulations; Carnival's ability to implement its shipbuilding program and to
continue to expand its business outside the North American market; Carnival's
ability to attract and retain shipboard crew; changes in foreign currency rates,
security expenses, food, fuel, insurance and commodity prices and interest
rates; delivery of new ships on schedule and at the contracted prices; weather
patterns; unscheduled ship repairs and dry-docking; incidents involving cruise
ships; impact of pending or threatened litigation; and changes in laws and
regulations applicable to Carnival.
Carnival cautions the reader that these risks may not be exhaustive. Carnival
operates in a continually changing business environment, and new risks emerge
from time to time. Carnival cannot predict such risks nor can it assess the
impact, if any, of such risks on its business or the extent to which any risk,
or combination of risks may cause actual results to differ from those projected
in any forward-looking statements. Accordingly, forward-looking statements
should not be relied upon as a prediction of actual results. Carnival undertakes
no obligation to publicly update or revise any forward-looking statements,
whether as a result of new information, future events or otherwise.
CARNIVAL PLANS TO FILE A REGISTRATION STATEMENT ON FORM S-4 AND A STATEMENT ON
SCHEDULE TO WITH THE US SECURITIES AND EXCHANGE COMMISSION IN CONNECTION WITH
COMMENCEMENT OF THE REVISED OFFER. THE FORM S-4 WILL CONTAIN A PROSPECTUS AND
OTHER DOCUMENTS RELATING TO THE REVISED OFFER. CARNIVAL PLANS TO MAIL THE
PROSPECTUS CONTAINED IN THE FORM S-4 TO SHAREHOLDERS OF P&O PRINCESS WHEN THE
FORM S-4 IS FILED WITH THE SEC. THE FORM S-4, THE PROSPECTUS AND THE SCHEDULE TO
WILL CONTAIN IMPORTANT INFORMATION ABOUT CARNIVAL, P&O PRINCESS, THE REVISED
OFFER AND RELATED MATTERS. INVESTORS AND STOCKHOLDERS SHOULD READ THE FORM S-4,
THE PROSPECTUS, THE SCHEDULE TO AND THE OTHER DOCUMENTS FILED WITH THE SEC IN
CONNECTION WITH THE REVISED OFFER CAREFULLY BEFORE THEY MAKE ANY DECISION WITH
RESPECT TO THE REVISED OFFER. THE FORM S-4, THE PROSPECTUS, THE SCHEDULE TO AND
ALL OTHER DOCUMENTS FILED WITH THE SEC IN CONNECTION WITH THE REVISED OFFER WILL
BE AVAILABLE WHEN FILED FREE OF CHARGE AT THE SEC'S WEB SITE, AT WWW.SEC.GOV. IN
ADDITION, THE PROSPECTUS AND ALL OTHER DOCUMENTS FILED WITH THE SEC IN
CONNECTION WITH THE REVISED OFFER WILL BE MADE AVAILABLE TO INVESTORS FREE OF
CHARGE BY WRITING TO TIM GALLAGHER AT CARNIVAL CORPORATION, CARNIVAL PLACE, 3655
N.W. 87 AVENUE, MIAMI, FLORIDA, 33178-2428, US.
IN ADDITION TO THE FORM S-4, PROSPECTUS, THE SCHEDULE TO AND THE OTHER DOCUMENTS
FILED WITH THE SEC IN CONNECTION WITH THE REVISED OFFER, CARNIVAL IS OBLIGATED
TO FILE ANNUAL, QUARTERLY AND CURRENT REPORTS, PROXY STATEMENTS AND OTHER
INFORMATION WITH THE SEC. PERSONS MAY READ AND COPY ANY REPORTS, STATEMENTS AND
OTHER INFORMATION FILED WITH THE SEC AT THE SEC'S PUBLIC REFERENCE ROOM AT 450
FIFTH STREET, N.W., WASHINGTON, D.C. 20549. PLEASE CALL THE SEC AT
1-800-SEC-0330 FOR FURTHER INFORMATION ON THE PUBLIC REFERENCE ROOM. FILINGS
WITH THE SEC ALSO ARE AVAILABLE TO THE PUBLIC FROM COMMERCIAL DOCUMENT-RETRIEVAL
SERVICES AND AT THE WEB SITE MAINTAINED BY THE SEC AT WWW.SEC.GOV.
OPINION FROM SHEARMAN AND STERLING
Broadgate West
9 Appold Street
London EC2A 2AP
February 1, 2002
Merrill Lynch International
2 King Edward Street
London EC1A 1HG
UBS Warburg Ltd.
2 Finsbury Avenue
London EC2M 2PP
CARNIVAL CORPORATION
Dear Sirs:
We understand that you are acting as financial advisors to
Carnival Corporation ("CARNIVAL") in connection with the Pre-Conditional Offer
dated January 30, 2002 (the "CARNIVAL PRE-CONDITIONAL OFFER") to be made by each
of you on behalf of Carnival for all of the issued and outstanding share capital
of P&O Princess Cruises plc ("P&O PRINCESS"). In connection therewith, you have
asked us to advise you regarding the interpretation of certain provisions of the
Implementation Agreement (the "IMPLEMENTATION AGREEMENT") dated November 19,
2001 between Royal Caribbean Cruises Ltd. ("ROYAL CARIBBEAN") and P&O Princess
providing for their merger as equals under a dual listed company structure ("DLC
COMBINATION") and the potential adjournment of the extraordinary general meeting
("EGM") of the shareholders of P&O Princess scheduled for February 14, 2002 to
approve the DLC Combination. In particular, you have asked us, as special
counsel to you, to consider whether, in light of the Carnival Pre-Conditional
Offer, the passing of a resolution to adjourn such meeting pursuant to a motion
and vote of the shareholders of P&O Princess would allow Royal Caribbean to
terminate either the Implementation Agreement pursuant to Article VI thereof or
the Voting Agreement (as defined below). As you are aware we have not previously
advised you in relation to the matters referred to above. We have not
participated in any discussions relating to the Pre-Conditional Offer and are
not aware of any facts or circumstances relating to the matters referred to
above relevant to our opinions contained herein other than in the public domain.
Terms defined in the Implementation Agreement are used herein as therein
defined.
A. ASSUMPTIONS
For the purposes hereof and with your permission, we have
assumed that the proposed adjournment of the EGM would occur as follows:
(1) The EGM is called to order on February 14, 2002 by
the Chairman of P&O Princess or if he is unavailable, a
director thereof. Shareholders of P&O Princess necessary to
constitute a quorum are present either in person or by proxy
at the EGM.
(2) Immediately after the EGM is called to order, any
individual shareholder or corporate representative of a
corporate shareholder of P&O Princess moves to adjourn the
EGM, directs the Chairman of the EGM to move one or more
resolution(s) to effect the adjournment (the "ADJOURNMENT
RESOLUTION") and such motion is seconded by another
shareholder.
(3) Thereafter the Chairman of the EGM proposes the
Adjournment Resolution to the members in general meeting and
five shareholders present in person or by proxy then request
that the vote be taken on a poll in accordance with Article 60
of the P&O Princess Articles of Association (the "ARTICLES").
(4) All other actions for the consideration of the
Adjournment Resolution are taken, and a shareholder vote or
poll is conducted, in each case in accordance with the
Articles and the Companies Act 1985, as amended.
(5) A majority of the votes cast at the EGM vote in favor
of the Adjournment Resolution and all other corporate steps
are taken to duly adopt such resolution.
(6) The Chairman, pursuant to Article 58.2 of the
Articles, adjourns the EGM to a date chosen in the reasonable
exercise of his discretion.
(7) Up until the EGM being called to order by the
Chairman of the meeting no fact or circumstance shall have
existed or occurred that may give Royal Caribbean a right to
terminate the Implementation Agreement or the Voting
Agreement.
(8) Save for the steps described above, between the EGM
being called to order by the Chairman of the meeting and the
passing of the Adjournment Resolution, none of P&O Princess,
the Chairman of the meeting, its officers, its directors or
its Representatives, whether by act or omission, gives Royal
Caribbean the right to terminate the Implementation Agreement
under Section 6.2 or Section 6.3.
(9) P&O Princess will use its best endeavours to avoid,
dispute, resist, appeal, compromise or defend any claim,
action, demand, proceeding, judgment or liability brought or
established by Royal Caribbean to terminate the Implementation
Agreement in relation to any act or omission by P&O Princess,
its officers, its directors or its Representatives from and
including the EGM being called to order by the Chairman of the
EGM up to and including the passing of the Adjournment
Resolution.
In addition, in connection with our review, we have examined
copies of the following documents (the "DOCUMENTS"): (i) the Implementation
Agreement; (ii) the form of Voting Agreement attached as Exhibit E to the
Implementation Agreement (the "VOTING AGREEMENT") executed by P&O Princess and
certain shareholders of Royal Caribbean; (iii) the Circular to P&O Princess
shareholders and Notice of the EGM to approve the proposed DLC Combination; and
(iv) the Articles adopted by special resolution on April 30, 2001. In our
examination of the Documents, we have assumed the due execution and delivery,
pursuant to due authorization, of the Implementation Agreement and the Voting
Agreement by all parties thereto and the completeness and accuracy of all copies
of the Documents.
B. ROYAL CARIBBEAN'S RIGHTS TO TERMINATE THE
IMPLEMENTATION AGREEMENT AND SCOPE OF SHEARMAN & STERLING'S
OPINION
Section 6.2 and Section 6.3 set out Royal Caribbean's
unilateral rights to terminate the Implementation Agreement. [1]
We are not aware of any fact or circumstance that upon the
passing of the Adjournment Resolution would give Royal Caribbean the right under
Sections 6.2(i), 6.2(ii) or 6.2(iii) to terminate the Implementation Agreement.
C. SUMMARY CONCLUSIONS
As more fully set out below and subject to the limitations set
out in Part E, given the assumptions set out in Part A and the scope of our
opinion described in Part B, we are of the opinion that the passing of a
resolution to adjourn the EGM pursuant to the Adjournment Resolution proposed by
shareholders of P&O Princess in accordance with its Articles, would not give
Royal Caribbean the right to terminate the Implementation Agreement under
Section 6.2 or Section 6.3. In our opinion, the purported termination of the
Implementation Agreement by Royal Caribbean on either of these grounds in
response to the passing of the Adjournment Resolution would constitute a breach
of the Implementation Agreement.
In addition, because, in our opinion, the passing of the
Adjournment Resolution would not permit Royal Caribbean to terminate the
Implementation Agreement, we are of the opinion that, upon such event, the
Voting Agreement would not terminate.
D. LEGAL ANALYSIS
1. TERMINATION UNDER SECTION 6.2 (OTHER THAN SECTION
6.2(IV)). On the understanding that the EGM is convened and the Adjournment
Resolution is passed on February, 14 2002 in the manner described in Part A,
based on the facts and circumstances in relation to P&O Princess and Royal
Caribbean known to us, the passing of the Adjournment Resolution would not of
itself entitle Royal Caribbean to terminate the Implementation Agreement
pursuant to Section 6.2 (other than Section 6.2(iv) in relation to which we
opine separately in Part D-2 herein).
2. TERMINATION UNDER SECTION 6.2(IV). Section 6.2(iv)
provides that the Implementation Agreement may be terminated by Royal Caribbean
if:
"the P&O Princess Requisite Vote shall not have been obtained
at the duly held P&O Princess Shareholders Meeting, INCLUDING
ANY ADJOURNMENTS OR POSTPONEMENTS THEREOF" (emphasis added).
The definition of "P&O Princess Shareholders Meeting" (i.e. the EGM) is set out
in Section 4.4 of the Implementation Agreement as a meeting, to be convened by
P&O Princess as soon as possible, of the holders of P&O Princess ordinary shares
to approve the transactions contemplated by the Implementation Agreement.
Section 4.4 sets no deadline by which the EGM must be held and, on the contrary,
Section 6.2(iv) specifically contemplates multiple adjournments or
postponements.[2]
The reference to adjournments and postponements is customary
in New York law agreements in which shareholder votes are contemplated or
required as well as in notices of shareholder meetings of New York corporations.
The provision does not confine its application to postponements or adjournments
arising for technical reasons, and it is unlikely that any New York court would
add such a restriction. On the contrary, under New York law, such a covenant is
generally interpreted against the party seeking to rely upon it. If Royal
Caribbean had wanted to limit this discretion, a court is likely to hold that
the provision should have been drafted more precisely (e.g. by specifically
reciting that adjournments and postponements in contemplation of a potential
competing transaction are excluded from the ambit of Section 6.2(iv)).
Courts interpreting New York law should have no difficulty
interpreting the concept of an adjournment of a shareholders meeting of an
English company. New York corporation law contemplates that an adjournment of a
meeting is a continuation of that meeting. SEE 2 - 6 WHITE ON NEW YORK
CORPORATIONS at Section 605.06. When a meeting is adjourned, it is not
necessary, unless the by-laws otherwise require, to give notice of the
reconvened meeting if the time and place of that meeting are announced at the
meeting at which the resolution to adjourn was passed and at the reconvened
meeting any business may be transacted that might have been transacted on the
original date of the meeting. SEE NY BUSINESS CORPORATION LAW, Section 605.
Given that P&O Princess is incorporated in England, the
procedures for the convening, adjourning and holding of general meetings of P&O
Princess are governed by English law. Under English law a general meeting held
following an effective adjournment of a properly convened general meeting is
considered to be a continuation of the earlier meeting: SEE PALMER'S COMPANY
LAW, para 7.617, GOWER'S PRINCIPLES OF MODERN COMPANY LAW, 6th ed, p. 592 and
TOLLEY'S COMPANY LAW, para G2035. It appears that this position was recognized
by the parties to the Implementation Agreement in that Section 6.2(iv) envisages
"adjournments and postponements" which would delay the holding but not the
nature of the business to be considered at the EGM.
On the understanding that the EGM is convened and the
Adjournment Resolution is passed on February 14, 2002 in the manner described in
Part A, the passing of the Adjournment Resolution would not of itself entitle
Royal Caribbean to terminate the Implementation Agreement pursuant to Section
6.2(iv). In addition, while there is no New York case law directly on point, we
are of the opinion that if the matter is properly brought before an appropriate
court, the court properly presented with facts consistent with those described
above in Part A should also reach the same determination.
3. TERMINATION UNDER SECTION 6.3. Prior to the passing
of the Adjournment Resolution at the EGM, an issue may arise as to whether or
not the acts or omissions of P&O Princess and in particular the acts or
omissions of the chairman of the EGM in permitting any member to speak and
request that the EGM be adjourned, acknowledging any such request and thereafter
putting to the members in general meeting a resolution to adjourn the EGM
(whether or not on a poll) would entitle Royal Caribbean to terminate the
Implementation Agreement pursuant to Section 6.3.
In particular, it could be alleged that the matters described
in the immediately preceding paragraph and the passing of the Adjournment
Resolution may conflict with the covenants in (a) Section 4.1.7 which provide
that P&O Princess may not take "...any action or omit to take any action for the
purpose of preventing, delaying or impeding the consummation of the transactions
contemplated by [the Implementation Agreement]..." or (b) Section 4.2.1 which
provides that neither P&O Princess nor its officers or directors shall
"facilitate the making of any Acquisition Proposal or...otherwise facilitate or
attempt to make or implement an Acquisition Proposal." If such an allegation was
successful, Royal Caribbean could rely upon Section 6.3(iii) to terminate the
Implementation Agreement as a result of "...a breach by P&O Princess of any
representation, warranty, covenant or agreement contained [therein]".
In our opinion, the procedural and administrative actions
taken at the EGM before and on the passing of the Adjournment Resolution which
are described in Part A, (x) are required by the Articles and (y) do not violate
Sections 4.1.7 or 4.2.1 and therefore would not give Royal Caribbean the right
to terminate under Section 6.3 for the following reasons:
First, Article 58.1 of the Articles, specifically acknowledges
the concept of an adjournment of the EGM and the role of the chairman of the EGM
in the limited procedural aspects and mechanics thereof:
"The Chairman may, with the consent of a meeting at which a
quorum is present (and SHALL IF SO DIRECTED BY THE MEETING)
adjourn the meeting from time to time and from place to place.
No business shall be transacted at an adjourned meeting other
than business which might properly have been transacted at the
meeting had the adjournment not taken place." (emphasis added)
The assumed actions described in Part A provide that none of the persons bound
by the covenants contained in the Implementation Agreement - P&O Princess, its
Chairman, officers, directors and Representatives - will take any active
measures to initiate the adjournment of the EGM. As persons voting shares of P&O
Princess are not bound by the restrictions contained in Sections 4.1.7 and
4.2.1, the actions described in Part A taken by shareholders to adopt the
Adjournment Resolution at the EGM would not, in our view, violate those
covenants. Once the Adjournment Resolution is passed, the Chairman, under
Article 58.1, is obliged to adjourn the EGM. Therefore, the actions to be taken
by the Chairman are solely ones specifically contemplated by the Articles. While
it may be argued that such required actions violate these contractual
provisions, in our opinion, under English law, any provisions in the
Implementation Agreement requiring action (or inaction) by the Chairman of the
EGM prior to or at the time of the passing of a resolution to adjourn the EGM
that are inconsistent with the actions specifically required by the Articles
must be interpreted as being subject to the basic rights, provisions and duties
under the Articles of P&O Princess and the Chairman of the EGM.
Second, it is clear that when acting as Chairman a director
(or any other officer) of a company is not acting in his capacity as a director
(or officer) but is in fact acting for the meeting and owes a duty to the
meeting and not the board of directors. SEE GOWER'S PRINCIPLES OF MODERN COMPANY
LAW, 6th ed, p. 585. Accordingly, if the Adjournment Resolution is passed, the
Chairman having taken the actions described above at the EGM up to the passing
of the Adjournment Resolution cannot be said to have done anything more in his
capacity as Chairman than to have acted in accordance with the instructions, and
on behalf of, the shareholders in general meeting and in compliance with the
express requirements of the Articles. Again, no volitional actions or pro-active
assistance or cooperation can be said to have been provided in respect of an
Acquisition Proposal in violation of Section 4.2.1, and the purpose of such
action, consistent with Section 4.1.7, is to comply with the requirements of the
Articles NOT to prevent, delay or impede the transactions contemplated by the
Implementation Agreement.
Based upon and subject to the foregoing, we are of the opinion
that if the Adjournment Resolution is passed as described above, in the absence
of acts or omissions otherwise entitling Royal Caribbean to so terminate, Royal
Caribbean would not be entitled to terminate the Implementation Agreement
pursuant to Section 6.3. In addition, based on and subject to the foregoing,
while there is no New York case law directly on point, we are of the opinion
that in the event the matter is properly brought before an appropriate court,
the court properly presented with facts consistent with those described above in
Part A should also reach the same determination.
4. TERMINATION OF VOTING AGREEMENT. The Voting Agreement
contains, in Section 19 thereof, a limited termination provision that terminates
the agreement on the earliest to occur of (a) the approval of the DLC
Combination by the Royal Caribbean Requisite Vote, (b) the termination of the
Implementation Agreement and (c) the date specified in a written agreement duly
executed by P&O Princess and each of the stockholders party thereto. As set
forth above, in our opinion, the mere passing of the Adjournment Resolution in
the manner described in Part A will not give Royal Caribbean termination rights
under either Section 6.2 or Section 6.3 of the Implementation Agreement. Given
our earlier conclusion, based upon and subject to the foregoing, it is our
opinion that the mere passing of the Adjournment Resolution would also not
result in the termination of the Voting Agreement or the proxies granted
thereunder to P&O Princess to vote, at the Royal Caribbean general meeting to
approve the DLC combination, the shares of the Royal Caribbean shareholders that
are parties to the Voting Agreement.
In addition, while there is no New York case law directly on
point, we are of the opinion that if the matter is properly brought before an
appropriate court, the court properly presented with facts consistent with those
described above in Part A should also reach the same determination.
E. LIMITATIONS AND QUALIFICATIONS
Our opinions above are subject to the following limitations
and qualifications:
(1) We express no opinion as to whether or not Royal
Caribbean has a right to terminate the Implementation Agreement in respect of
any acts or omissions of any person either before the EGM is called to order by
the Chairman of the meeting or after the passing of the Adjournment Resolution.
(2) Our opinions are subject to the effect of general
principles of equity, including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law).
(3) Our opinions are subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law or
proceeding affecting creditors' rights generally.
(4) Our opinions are governed by and construed in
accordance with the laws of New York.
(5) In addition, in rendering our opinions, we have
assumed that the conduct of all relevant parties at the EGM, from the time of
calling the meeting to order until the passing of the Adjournment Resolution,
will be consistent with our assumptions in Part A. Our opinions are based on
such assumptions and the failure of any of the persons attending the EGM to
proceed in such manner or otherwise behave in a manner consistent with the
Implementation Agreement could alter our conclusions expressed in Parts C and D
hereof.
(6) We are qualified to practice law in England and the
State of New York, for the purpose of these opinions we do not purport to be
experts on any laws other than the laws of the State of New York, the General
Corporation Law of the State of Delaware, the Federal laws of the United States
and the laws of England.
(7) We are acting as special New York and English counsel
to you in connection with these issues and to no one else and, from time to
time, may advise you on other issues arising under the Documents or the Carnival
Pre-Conditional Offer. This opinion has been rendered only to each of you listed
on the first page hereof and speaks only as of the date hereof. While we
understand that you will publicly disclose the existence and contents of this
letter, our opinion is addressed solely to you and may not be relied upon by any
other person, including the shareholders of P&O Princess, Royal Caribbean or
Carnival, without our express prior written consent.
(8) It is not part of Shearman & Sterling's function to
give advice to you or to any such other person who may read this letter as to
the merits of any investment transaction in relation to P&O Princess, Royal
Caribbean or Carnival. This letter sets out certain legal advice and is not to
be regarded as making an invitation or inducement to you or to any such other
person to engage in any investment activity in relation to P&O Princess, Royal
Caribbean or Carnival. Shearman & Sterling has assumed any investment decision
by you or any such other person in relation to P&O Princess, Royal Caribbean or
Carnival shall be made on the relevant person's own assessment of the business,
financial and policy aspects relating to the EGM and any investment in P&O
Princess, Royal Caribbean or Carnival
Very truly yours,
SHEARMAN & STERLING
[1] Sections 6.2 and 6.3 provide:
6.2 "[The Implementation] Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Effective
Time by action of the board of directors of either P&O Princess or
Royal Caribbean if (i) the Closing and the transactions contemplated
hereby shall not have been consummated by November 16, 2002, whether
such date is before or after the date of approval by the shareholders
of Royal Caribbean or P&O Princess (the "TERMINATION DATE"), (ii) any
Order (which the terminating Party shall have used its reasonable best
efforts to resist, resolve or lift, as applicable, in accordance with
Section 4.5) permanently restraining, enjoining or otherwise
prohibiting the consummation of, or materially adversely affecting, the
transactions contemplated hereby shall have become final and
non-appealable, whether before or after the approval by the
shareholders of Royal Caribbean or P&O Princess, (iii) the Royal
Caribbean Requisite Vote shall not have been obtained at the duly held
Royal Caribbean Shareholders Meeting, including any adjournments or
postponements thereof, or (iv) the P&O Princess Requisite Vote shall
not have been obtained at the duly held P&O Princess Shareholders
Meeting including any adjournments or postponements thereof; PROVIDED
that the right to terminate this Agreement shall not be available to a
Party that has breached in any material respect its obligations under
this Agreement in any manner that shall have proximately contributed to
the failure of the transactions contemplated hereby to be consummated."
6.3 "[The Implementation] Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Effective
Time, whether before or after the approval by shareholders of Royal
Caribbean referred to in paragraph 5.1.1, by action of the board of
directors of Royal Caribbean, if (i) the board of directors of P&O
Princess shall have withdrawn or adversely modified its approval or
recommendation to shareholders of this Agreement and the transactions
contemplated by this Agreement or shall have resolved to take any such
action or failed to reconfirm such approval or recommendation within
five Business Days after a written request by Royal Caribbean to do so;
or (ii) P&O Princess or its board of directors shall take any of the
actions described in clause (ii) of the proviso to Section 4.2.1; or
(iii) there shall be a breach by P&O Princess of any representation,
warranty, covenant or agreement contained in this Agreement which would
result in a failure of a condition set forth in paragraph 5.3.1 or
5.3.2 and cannot be or is not cured prior to the Termination Date."
[2] A separate provision of the Implementation Agreement, Section 6.2(i)
does provide for termination on a date certain - November 16, 2002, but
only if the transactions contemplated by the Implementation Agreement
are not consummated by such date. Section 6.2(i) provides that the
ability of the parties to terminate the Implementation Agreement after
such date certain is operative whether or not the P&O Princess
shareholder approval is obtained before or after such date. Therefore,
the parties recognize that, even if the EGM is promptly convened, the
EGM may indeed be held at an undefined time in the future, including
after November 16.
AL/AK