UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report
(date of earliest event reported)
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| (State or other jurisdiction of incorporation) | (State or other jurisdiction of incorporation) | |
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| (I.R.S. Employer Identification No.) | (I.R.S. Employer Identification No.) | |
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| (Registrant’s telephone number, including area code) | (Registrant’s telephone number, including area code) | |
| None | None | |
| (Former name or former address, if changed since last report.) | (Former name or former address, if changed since last report.) | |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) |
Name
of each exchange on which | ||
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| , Special Voting Share, GBP 1.00 par value and Trust Shares of beneficial interest in the P&O Princess Special Voting Trust | , Inc. | |||
Indicate by check mark whether the registrants are emerging growth companies as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2) of this chapter).
Emerging growth
company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 8.01. Other Events.
Equity Offering and Repurchase of Convertible Notes
On November 19, 2020, Carnival Corporation (the “Corporation”) and Carnival plc closed a registered direct offering of 49.2 million shares of the Corporation’s common stock at a price of $18.05 per share to a limited number of holders of its 5.75% Convertible Senior Notes due 2023 (the “Convertible Notes”). The Corporation used the proceeds from this closing to repurchase $427.9 million principal amount of its Convertible Notes in privately negotiated transactions.
The Corporation expects to close an additional 8.2 million shares as part of the registered direct offering on November 20, 2020. The Corporation intends to use the proceeds from the November 20, 2020 closing to repurchase an additional $71.5 million principal amount of its Convertible Notes in a privately negotiated transaction.
The offer and sale of the shares were made pursuant to a registration statement on Form S-3 (File Nos. 333-322555 and 333-332555-01) filed by the Corporation and Carnival plc with the Securities and Exchange Commission under the Securities Act of 1933, as amended, and the prospectus supplement thereunder related to the closings.
Following these note repurchases, an aggregate of $627.5 million principal amount of the Corporation’s Convertible Notes will remain outstanding.
On November 19, 2020, the Corporation issued a press release announcing the closing of the offering which is attached hereto as Exhibit 99.1, the text of which is incorporated herein by reference.
Copies of the opinions of Tapia, Linares y Alfaro, Maples and Calder and Freshfields Bruckhaus Deringer LLP relating to the legality of the issuance and sale of the Shares are attached as Exhibits 5.1, 5.2 and 5.3, respectively, hereto.
Cautionary Note Concerning Factors That May Affect Future Results
Carnival Corporation and Carnival plc and their respective subsidiaries are referred to collectively in this Current Report on Form 8-K, including the Exhibits hereto (collectively, this “document”), as “Carnival Corporation & plc,” “our,” “us” and “we.” Some of the statements, estimates or projections contained in this document are “forward-looking statements” that involve risks, uncertainties and assumptions with respect to us, including some statements concerning the financing transactions described herein, future results, operations, outlooks, plans, goals, reputation, cash flows, liquidity and other events which have not yet occurred. These statements are intended to qualify for the safe harbors from liability provided by Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. All statements other than statements of historical facts are statements that could be deemed forward-looking. These statements are based on current expectations, estimates, forecasts and projections about our business and the industry in which we operate and the beliefs and assumptions of our management. We have tried, whenever possible, to identify these statements by using words like “will,” “may,” “could,” “should,” “would,” “believe,” “depends,” “expect,” “goal,” “anticipate,” “forecast,” “project,” “future,” “intend,” “plan,” “estimate,” “target,” “indicate,” “outlook,” and similar expressions of future intent or the negative of such terms.
Forward-looking statements include those statements that relate to our outlook and financial position including, but not limited to, statements regarding:
| · | Pricing | · | Estimates of ship depreciable lives and residual values |
| · | Booking levels | · | Goodwill, ship and trademark fair values |
| · | Occupancy | · | Liquidity and credit ratings |
| · | Interest, tax and fuel expenses | · | Adjusted earnings per share |
| · | Currency exchange rates | · | The impact of the COVID-19 coronavirus global pandemic on our financial condition and results of operations |
| · | Net cruise costs, excluding fuel per available lower berth day | ||
Because forward-looking statements involve risks and uncertainties, there are many factors that could cause our actual results, performance or achievements to differ materially from those expressed or implied by our forward-looking statements. This note contains important cautionary statements of the known factors that we consider could materially affect the accuracy of our forward-looking statements and adversely affect our business, results of operations and financial position. Additionally, many of these risks and uncertainties are currently amplified by and will continue to be amplified by, or in the future may be amplified by, the COVID-19 outbreak. It is not possible to predict or identify all such risks. There may be additional risks that we consider immaterial or which are unknown. These factors include, but are not limited to, the following:
| · | COVID-19 has had, and is expected to continue to have, a significant impact on our financial condition and operations, which impacts our ability to obtain acceptable financing to fund resulting reductions in cash from operations. The current, and uncertain future, impact of the COVID-19 outbreak, including its effect on the ability or desire of people to travel (including on cruises), is expected to continue to impact our results, operations, outlooks, plans, goals, reputation, litigation, cash flows, liquidity, and stock price; |
| · | As a result of the COVID-19 outbreak, we may be out of compliance with a maintenance covenant in certain of our debt facilities, for which we have waivers for the period through November 30, 2021 with the next testing date of February 28, 2022; |
| · | World events impacting the ability or desire of people to travel may lead to a decline in demand for cruises; |
| · | Incidents concerning our ships, guests or the cruise vacation industry as well as adverse weather conditions and other natural disasters may impact the satisfaction of our guests and crew and lead to reputational damage; |
| · | Changes in and non-compliance with laws and regulations under which we operate, such as those relating to health, environment, safety and security, data privacy and protection, anti-corruption, economic sanctions, trade protection and tax may lead to litigation, enforcement actions, fines, penalties and reputational damage; |
| · | Breaches in data security and lapses in data privacy as well as disruptions and other damages to our principal offices, information technology operations and system networks, including the recent ransomware incident, and failure to keep pace with developments in technology may adversely impact our business operations, the satisfaction of our guests and crew and lead to reputational damage; |
| · | Ability to recruit, develop and retain qualified shipboard personnel who live away from home for extended periods of time may adversely impact our business operations, guest services and satisfaction; |
| · | Increases in fuel prices, changes in the types of fuel consumed and availability of fuel supply may adversely impact our scheduled itineraries and costs; |
| · | Fluctuations in foreign currency exchange rates may adversely impact our financial results; |
| · | Overcapacity and competition in the cruise and land-based vacation industry may lead to a decline in our cruise sales, pricing and destination options; |
| · | Geographic regions in which we try to expand our business may be slow to develop or ultimately not develop how we expect; and |
| · | Inability to implement our shipbuilding programs and ship repairs, maintenance and refurbishments may adversely impact our business operations and the satisfaction of our guests. |
The ordering of the risk factors set forth above is not intended to reflect our indication of priority or likelihood.
Forward-looking statements should not be relied upon as a prediction of actual results. Subject to any continuing obligations under applicable law or any relevant stock exchange rules, we expressly disclaim any obligation to disseminate, after the date of this document, any updates or revisions to any such forward-looking statements to reflect any change in expectations or events, conditions or circumstances on which any such statements are based.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. |
Description | |
| 5.1 | Opinion of Tapia, Linares y Alfaro. | |
| 5.2 | Opinion of Maples and Calder. | |
| 5.3 | Opinion of Freshfields Bruckhaus Deringer LLP. | |
| 99.1 | Press release of Carnival Corporation and Carnival plc dated November 19, 2020 | |
| 104 | Exhibit 104 Cover page from this Current Report on Form 8-K, formatted in Inline XBRL (included as Exhibit 101). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, each of the registrants has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| CARNIVAL CORPORATION | CARNIVAL PLC | |||
| By: | /s/ David Bernstein | By: | /s/ David Bernstein | |
| Name: | David Bernstein | Name: | David Bernstein | |
| Title: | Chief Financial Officer and Chief Accounting Officer | Title: | Chief Financial Officer and Chief Accounting Officer | |
| Date: November 19, 2020 | Date: November 19 , 2020 | |||
Exhibit 5.1
19 November 2020
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178-2428
U.S.A.
RE: Registration Statement on Form S-3
Dear Sirs:
In connection with the Registration Statement Nos. 333-223555 and 333-223555-01 on Form S-3 (the “Registration Statement”), filed by Carnival Corporation (the “Company”) and Carnival plc with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Act”), and the rules and regulations promulgated thereunder, which relates to, among other things, the registration of 57,426,860 shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”) to be issued pursuant to an equity offering (the “Equity Offering”), we have been requested to render our opinion as to the legality of the shares being registered thereunder (such shares, the “Shares”).
In this connection, we have examined (i) originals, photocopies or conformed copies of the Registration Statement and certain related documents, (ii) the Third Amended and Restated Articles of Incorporation and By-Laws of the Company, each as amended to date, and (iii) records of certain of the Company’s corporate proceedings. In addition, we have made such other examinations of law and fact as we have considered necessary in order to form a basis of the opinions hereinafter expressed. In connection with such investigation, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to originals of all documents submitted to us as photocopies or conformed copies. We have relied as to matters of fact upon declarations and certificates of officers of the Company.
Carnival Corporation
19 November 2020
Page 2
Based on the foregoing, we are of the opinion that:
| 1. | The Company is duly incorporated and validly existing as a corporation in good standing under the laws of the Republic of Panama. |
| 2. | The Shares have been duly and legally authorized for issuance, and such shares, when issued and delivered by the Company on the terms and conditions described in the Registration Statement and paid for in accordance with the terms and provisions of those certain common stock purchase agreements, dated 17 November 2020, by and among the Company, Carnival plc and each purchaser party thereto (the “Common Stock Purchase Agreements”), will be validly issued, fully paid and non-assessable. |
| 3. | The Shares, when issued and delivered by the Company on the terms and conditions described in the Equity Offering and paid for in accordance with the terms and provisions of the Common Stock Purchase Agreements, will be paired with one trust share of beneficial interest in the P&O Princess Special Voting Trust, or any successor thereto. |
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 all references to our firm in the Registration Statement and in the prospectus therein, and to the filing by the Company 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 the rules and regulations promulgated thereunder.
Very truly yours,
| /s/ TAPIA, LINARES Y ALFARO |
TAPIA, LINARES Y ALFARO
Fernando A. Linares
Exhibit 5.2
Our ref KZR/278104-000004/64351691v2
| The Addressees named in the Schedule |
19 November 2020
P&O Princess Special Voting Trust
We have acted as counsel as to Cayman Islands law to The Law Debenture Corporation (Cayman) Limited (the "Trustee") in connection with:
| 1 | the voting trust deed dated 17 April 2003 (the "Trust Deed") by and between Carnival Corporation, a Panamanian company ("Carnival Corporation"), and the Trustee, pursuant to which Carnival Corporation and the Trustee established the P&O Princess Special Voting Trust, a Cayman Islands trust (the "Trust") and pursuant to which shares of beneficial interest in the Trust (the "P&O Trust Shares") have been issued and the initial trust property of which was the special voting share of 1 pound sterling in the capital of Carnival plc, a public company incorporated in England and Wales ("Carnival plc") issued to Carnival Corporation (the "P&O Princess Special Voting Share") and paired with Carnival Corporation’s Common Stock on a one-for-one basis; and |
| 2 | the registration statement on Form S-3 ASR, including all amendments or supplements thereto (including, without limitation, the prospectus supplement dated November 17, 2020, the "Form S-3"), filed with the Securities and Exchange Commission on 9 March 2018 by Carnival Corporation and Carnival plc, a public limited Carnival Corporation incorporated under the laws of England and Wales ("Carnival plc"), under the United States Securities Act of 1933, as amended (the "Registration Statement") relating to, among other things, the registration of 57,426,860 trust shares of beneficial interest in the Trust, which Trust Shares are paired with the shares of Carnival Corporation Common Stock on a one-for-one basis and represent a beneficial interest in a special voting share of Carnival plc. |
We are furnishing this opinion letter as Exhibit 5 to the Registration Statement. Other terms used but not defined in this opinion letter are used as defined in the Trust Deed.
| 1 | Documents Reviewed |
We have reviewed originals, copies, drafts or conformed copies of the following documents:
| 1.1 | The Trust Deed. |
| 1.2 | A letter from the Trustee to Carnival Corporation dated 17 April 2003 (the "Representation Letter"). |
| 1.3 | The Form S-3. |
| 2 | Assumptions |
The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter. We have also relied upon the following assumptions, which we have not independently verified:
| 2.1 | The trusts powers and provisions of the Trust have been validly subsisting without interruption since 17 April 2003 and are validly subsisting at the date of this opinion letter. |
| 2.2 | All the present terms of the Trust are contained within the Trust Deed and no other documents or events are relevant to establishing the present terms of the Trust. |
| 2.3 | The Trustee has strictly complied at all times with the terms of the Trust and the trust laws of the Cayman Islands and P&O Princess Special Voting Share remains the trust property subject to the terms of the Trust. |
| 2.4 | The Trustee has now and has always had the power and authority to perform all its trusts and powers as trustee. |
| 2.5 | The Trustee has exercised and will exercise all powers conferred on it by the Trust Deed or by law in good faith and for the purposes for which they were conferred and for no collateral purpose. |
| 2.6 | The representations of the Trustee in the Representation Letter are as true and correct today as they were at the date of the Representation Letter and that the Trustee has performed and continues to perform the undertakings of the Trustee in the Representation Letter. |
| 2.7 | Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals, and translations of documents provided to us are complete and accurate. |
| 2.8 | All signatures, initials and seals are genuine. |
| 2.9 | There is nothing under any law (other than Cayman Islands law) that would or might affect the opinions in this letter. Specifically, we have made no independent investigation of the laws of England and Wales, the Republic of Panama or the States of New York or Florida. |
| 3 | Opinions |
Based on the foregoing and subject to the qualifications set out below and having regard to such legal considerations as we consider relevant, we are of the opinion that:
| 3.1 | The Trust is duly established and constitutes a validly existing trust under the laws of the Cayman Islands. |
| 3.2 | The P&O Trust Shares, when issued as contemplated by the Registration Statement, have been authorised for issuance in accordance with the provisions of the Trust Deed and, on the relevant entries being made in the Share Register, the P&O Trust Shares will constitute validly issued, fully paid and non-assessable Trust Shares and, in respect of such P&O Trust Shares, the registered holders will have the rights attributable thereto as set forth in the Trust Deed. |
2
| 4 | Qualifications |
The opinion expressed above is subject to the following qualifications:
| 4.1 | Nominal Cayman Islands stamp duty of CI$40 (US$48) may be payable if the original Trust Deed is brought to or executed in the Cayman Islands. |
| 4.2 | The obligations of the Trustee may be subject to restrictions pursuant to United Nations sanctions as implemented under the laws of the Cayman Islands and/or restrictive measures adopted by the European Union Council for Common Foreign and Security Policy extended to the Cayman Islands by the Order of Her Majesty in Council. |
| 4.3 | All the beneficiaries under the Trust may together terminate the Trust notwithstanding anything to the contrary in the Trust Deed. |
We express no view as to whether the terms of the Trust Deed represent the intentions of the parties and make no comment with regard to the representations which may be made by Carnival Corporation or the Trustee.
This opinion is given today and may not be relied on at any later date. This opinion letter is given for your benefit for the purposes of the Registration Statement to be filed under the Securities Act.
We hereby consent to filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the heading "Legal Opinions" in the Registration Statement. In giving our consent, we do not thereby admit that we are in the category of persons whose consent is required under the Securities Act or the Rules and Regulations of the Commission thereunder.
Yours faithfully
| /s/ Maples and Calder |
3
Schedule
Carnival plc
100 Harbour Parade
Southampton SO15 1ST
United Kingdom
Carnival Corporation
3655 NW 87th Avenue
Miami, Florida 33178-2428
United States of America
4
Exhibit 5.3
Carnival plc Carnival House 100 Harbour Parade Southampton United Kingdom SO15 1ST
Carnival Corporation 3655 NW 87th Avenue Miami
|
London
Our Ref |
19 November 2020
Dear Sirs
REGISTRATION STATEMENT ON FORM S-3 ASR
INTRODUCTION
1. In connection with the joint registration statement originally filed on 9 March 2018 (the Registration Statement) under the Securities Act 1933, as amended (the Act) on Form S-3ASR of Carnival Corporation, a corporation organised under the laws of the Republic of Panama (Carnival Corporation), and Carnival plc, a public limited company incorporated under the laws of England and Wales (the Company), we have been requested to render our opinion on certain matters in connection with the Registration Statement.
2. The Registration Statement relates to the registration under the Act of the issuance of, among other things, (i) shares of common stock of Carnival Corporation, par value US$0.01 per share (the Carnival Corporation Common Stock), (ii) the special voting share of 1 pound sterling in the capital of the Company (the Special Voting Share) issued to Carnival Corporation (such share having been transferred to the trustee of the P&O Princess Special Voting Trust), and (iii) the trust shares (the Trust Shares) of beneficial interest in the P&O Princess Special Voting Trust, a trust established under the laws of the Cayman Islands, which Trust Shares are paired with the Carnival Corporation Common Stock on a one-for-one basis and represent a beneficial interest in the Special Voting Share.
Freshfields Bruckhaus Deringer LLP is a limited liability partnership registered in England and Wales with registered number OC334789. It is authorised and regulated by the Solicitors Regulation Authority. For regulatory information please refer to www.freshfields.com/support/legalnotice.
A list of the members (and of the non-members who are designated as partners) of Freshfields Bruckhaus Deringer LLP is available for inspection at its registered office, 65 Fleet Street, London EC4Y 1HS. Any reference to a partner means a member, or a consultant or employee with equivalent standing and qualifications, of Freshfields Bruckhaus Deringer LLP or any of its affiliated firms or entities.
| 2ï7 |
3. We are acting as English legal advisers to the Company for the purposes of giving this opinion. In so acting, we have examined the following documents:
| (a) | the Registration Statement; |
| (b) | a copy of the articles of association of the Company in force as at 18 November 2020 (the Articles); |
| (c) | a copy of the Company’s Certificate of Incorporation dated 19 July 2000 issued by the Registrar of Companies of England and Wales; |
| (d) | a search carried out on 18 November 2020 (carried out by us or by GlobalX on our behalf) of the public documents of the Company kept at Companies House in Cardiff (the Company Search); |
| (e) | a certificate issued to us by the Corporate Counsel of the Company (certifying to us that, amongst other matters, the Special Voting Share has been duly authorised, validly issued and is fully paid and non-assessable) dated 19 November 2020 (the Counsel’s Certificate); and |
| (f) | a certificate issued to us by the Corporate Counsel of the Company dated 9 March 2018 (the Historic Certificate). |
The documents listed in paragraphs 3(a) to 3(f) above are referred to in this opinion as the Documents and we have relied upon the statements as to factual matters contained in or made pursuant to each of Documents. In this opinion, the Winding up Enquiry means our search (carried out by us or by GlobalX on our behalf) on 18 November 2020 of the Central Registry of Winding up Petitions.
ASSUMPTIONS
4. In considering the Documents and rendering this opinion we have with your consent and without any further enquiry assumed:
| (a) | Authenticity: the genuineness of all signatures, stamps and seals on, and the authenticity, accuracy and completeness of, all documents submitted to us whether as originals or copies; |
| (b) | Copies: the conformity to originals of all documents supplied to us as photocopies, portable document format (PDF) copies, facsimile copies or e-mail conformed copies; |
| (c) | Drafts: that, where a document has been examined by us in draft or specimen form, it will be or has been duly executed and delivered in the form of that draft or specimen; |
| (d) | Counsel’s Certificates: that each of the statements contained in the Counsel’s Certificate and the Historic Certificate (and in the schedules to each of the Counsel’s Certificate and the Historic Certificate) is true and correct as at the date hereof; |
| (e) | Company Search: that the information revealed by the Company Search: (i) was accurate in all respects and has not since the time of such search been altered; and (ii) was complete, and included all relevant information which had been properly submitted to the Registrar of Companies; |
| (f) | Winding-Up Enquiry: that the information revealed by the Winding up Enquiry was accurate in all respects and has not since the time of such enquiry been altered; |
| 3ï7 |
| (g) | Board Meeting: that the meeting of the board of directors of the Company to authorise the allotment and issue of the Special Voting Share was properly constituted and convened, that a quorum of properly appointed directors of the Company (holding the necessary offices and meeting the other requirements for the purposes of forming a quorum) was present throughout; that the resolutions referred to therein were properly passed at such meeting, that all provisions contained in the Companies Act 1985, the Articles and the articles of incorporation and by-laws of Carnival Corporation were duly observed, and that such resolutions have not been amended, revoked or rescinded and are in full force and effect; |
| (h) | Directors’ Duties: that the directors of the Company, in authorising the allotment and issue of the Special Voting Share and filing of the Registration Statement, have exercised their powers in accordance with their duties under all applicable laws and the Articles; |
| (i) | Unknown Facts: that there are no facts or circumstances (and no documents, agreements, instruments or correspondence) which are not apparent from the face of the Documents or which have not been disclosed to us that may affect the validity or enforceability of the Documents or any obligation therein or otherwise affect the opinions expressed in this opinion; |
| (j) | Representations: that the representations and warranties by the parties in the Documents in any case (other than as to matters of law on which we opine in this opinion) are or were, as applicable, true, correct, accurate and complete in all respects on the date such representations and warranties were expressed to be made and that the terms of the Documents have been and will be observed and performed by the parties thereto; |
| (k) | Anti-terrorism, money laundering: that the parties have complied (and will continue to comply) with all applicable anti-terrorism, anti-corruption, anti-money laundering, civil or criminal antitrust, cartel, competition, public procurement, state aid, sanctions and human rights laws and regulations, and that performance and enforcement of the Documents is, and will continue to be, consistent with all such laws and regulations; |
| (l) | Secondary Legislation: that all UK secondary legislation relevant to this opinion is valid, effective and enacted within the scope of the powers of the relevant rule-making authorities; |
| (m) | Authorisations: |
| (i) | that the Company had sufficient authorised capital at the time of the allotment and issue of the Special Voting Share to effect such allotment and issue; |
| (ii) | that the Company had sufficient authority to allot the Special Voting Share pursuant to section 80 of the Companies Act 1985 or any preceding legislation at the time of such allotment; |
| (n) | Pre-emption rights: that the Company complied with all applicable pre-emption rights, whether pursuant to law, regulation or the articles of association of the Company, at the time of the allotment and issue of the Special Voting Share; and |
| 4ï7 |
| (o) | Filings under all laws: that all consents, licences, approvals, notices, filings, recordations, publications and registrations which are necessary under any applicable laws in order to permit the performance of the Documents, including filing of the Registration Statement and the allotment and issue of the Special Voting Share, or to perfect, protect or preserve any of the interests created by the Documents, have been made or obtained, or will be made or obtained within the period permitted or required by such laws or regulations. |
OPINION
5. Based on and relying solely upon the foregoing and the assumptions in paragraph 4 above and subject to the matters set out in paragraphs 6 and 7 below and excluding any matters not disclosed to us, we are of the opinion that:
| (a) | the Company has been duly incorporated and registered in England and Wales as a public company limited by shares under the Companies Act 1985, as amended, and the Company Search and Winding-up Enquiry revealed no application, petition, order or resolution for the administration or winding up of the Company and no notice of appointment of, or intention to appoint, a receiver or administrator in respect of the Company; and |
| (b) | the Special Voting Share has been duly authorised and validly issued and is fully paid and non-assessable. |
For the purposes of this opinion, we have assumed that the term “non-assessable” in relation to the Special Voting Share means under English law that the holder of such share, in respect of which all amounts due on such share as to the nominal amount and any premium thereon have been fully paid, will be under no further obligation to contribute to the liabilities of the Company solely in its capacity as holder of such share.
QUALIFICATIONS
6. Our opinion is subject to the following qualifications:
| (a) | Company Search: the Company Search is not capable of revealing conclusively whether or not: |
| (i) | a winding-up order has been made or a resolution passed for the winding-up of a company; or |
| (ii) | an administration order has been made; or |
| (iii) | a receiver, administrative receiver, administrator or liquidator has been appointed; or |
| (iv) | a court order has been made under the Cross-Border Insolvency Regulations 2006, |
since notice of these matters may not be filed with the Registrar of Companies immediately and, when filed, may not be entered on the public microfiche of the relevant company immediately.
| 5ï7 |
In addition, the Company Search is not capable of revealing, prior to the making of the relevant order or the appointment of an administrator otherwise taking effect, whether or not a winding-up petition or an application for an administration order has been presented or notice of intention to appoint an administrator under paragraphs 14 or 22 of Schedule B1 to the Insolvency Act 1986 has been filed with the court;
| (b) | Winding-Up Enquiry: the Winding-Up Enquiry relates only to the presentation of: (i) a petition for the making of a winding-up order or the making of a winding-up order by the Court, (ii) an application to the High Court of Justice in London for the making of an administration order and the making by such court of an administration order, and (iii) a notice of intention to appoint an administrator or a notice of appointment of an administrator filed at the High Court of Justice in London. It is not capable of revealing conclusively whether or not such a winding-up petition, application for an administration order, notice of intention or notice of appointment has been presented or winding-up or administration order granted, because: |
| (i) | details of a winding-up petition or application for an administration order may not have been entered on the records of the Central Registry of Winding-Up Petitions immediately; |
| (ii) | in the case of an application for the making of an administration order and such order and the presentation of a notice of intention to appoint or notice of appointment, if such application is made to, order made by or notice filed with, a Court other than the High Court of Justice in London, no record of such application, order or notice will be kept by the Central Registry of Winding-Up Petitions; |
| (iii) | a winding-up order or administration order may be made before the relevant petition or application has been entered on the records of the Central Registry, and the making of such order may not have been entered on the records immediately; |
| (iv) | details of a notice of intention to appoint an administrator or a notice of appointment of an administrator under paragraphs 14 and 22 of Schedule B1 of the Insolvency Act 1986 may not be entered on the records immediately (or, in the case of a notice of intention to appoint, at all); and |
| (v) | with regard to winding-up petitions, the Central Registry of Winding-Up Petitions may not have records of winding-up petitions issued prior to 1994; |
| (c) | Jurisdiction: no opinion is given as to whether or not any court will take jurisdiction, or whether the English courts would grant a stay of any proceedings commenced in England, or whether the English courts would grant any relief ancillary to proceedings commenced in a foreign court; |
| (d) | Foreign Courts: we express no opinion as to whether or not a foreign court (applying its own conflict of laws rules) will act in accordance with the parties’ agreement as to jurisdiction and/or choice of law; and |
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| (e) | Insolvency: this opinion is subject to all applicable laws relating to insolvency, bankruptcy, administration, reorganisation, liquidation or analogous circumstances and other similar laws of general application relating to or affecting generally the enforcement of creditors’ rights and remedies from time to time. |
Observations
7. We should also like to make the following observations, it should be understood that:
| (a) | Factual Statements: we have not been responsible for verifying whether any statements of fact (including as to foreign law) or any statement of opinion or intention contained in or relevant to the Documents or any related documents are accurate, complete or reasonable or that no material facts have been omitted therefrom; |
| (b) | Enforceability: we express no opinion on whether the obligations of the Company under the Documents are enforceable against it in the English courts; |
| (c) | Nature of Role: we have not been involved in the preparation or negotiation of the Documents, and have reviewed them only for the limited purpose of giving this opinion. Accordingly, we express no view as to the suitability of the Documents or of their provisions or their general compliance with market practice or any commercial aspects of the Documents; and |
| (d) | Operational Licences: we have not investigated whether the Company has obtained any of the operational licences, permits and consents which it may require for the purpose of carrying on its business. |
Limitations of Liability
8. Where you have received advice from a number of advisers in connection with the matters on which we opine in this opinion or any related matter in respect of which we could be potentially jointly or severally liable with any such other advisers for losses suffered by you, our liability will not be affected by any limitation of liability which you may agree with any other advisers. Accordingly, our liability to you will be limited to such proportion of the losses suffered by you as is finally determined to be just and equitable, having regard to the relative responsibility of ourselves and any other person who is jointly or severally liable for such losses. If you have received advice from any other advisers with respect to matters on which we opine in this opinion which qualifies such opinions then, to the extent that such advice is correct, you will not place any reliance on the unqualified opinions contained in this opinion, and we will have no liability to you in connection therewith.
9. This opinion is limited to English law as currently applied by the English courts and is given on the basis that it and any non-contractual obligations arising out of or in relation to this opinion will be governed by and construed in accordance with current English law. Accordingly, we express no opinion with regard to any system of law other than the law of England as currently applied by the English courts. In particular, we express no opinion on European Union law as it affects any jurisdiction other than England.
10. We hereby consent to the use of our name in the Registration Statement and to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required by the Act or by the rules and regulations promulgated thereunder.
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Benefit of Opinion
11. This opinion is given to you for your benefit in relation to the Registration Statement to be filed under the Act. It is not to be transmitted to any other person nor is it to be relied upon by any other person or for any purposes or quoted or referred to in any public document without our prior written consent, except that we consent to the filing of this opinion as an exhibit to the Registration Statement.
Governing Law and Jurisdiction
12. This opinion and any non-contractual obligations arising out of or in relation to this opinion are governed by English law.
13. The English courts shall have exclusive jurisdiction, to which you and we submit, in relation to all disputes (including claims for set-off and counterclaims) arising out of or in connection with this opinion, including, without limitation, disputes arising out of or in connection with: (i) the creation, effect or interpretation of, or the legal relationships established by, this opinion; and (ii) any non-contractual obligations arising out of or in connection with this opinion.
| Yours faithfully | |
| /s/ Freshfields Bruckhaus Deringer LLP | |
| Freshfields Bruckhaus Deringer LLP |
Exhibit 99.1
Carnival Corporation & plc Announces Closing of an Equity Offering and Repurchase of Convertible Notes
MIAMI, November 19, 2020 /PRNewswire/ -- Carnival Corporation & plc (NYSE/LSE: CCL; NYSE: CUK), today announced that Carnival Corporation (the “Corporation”) has closed its previously announced registered direct offering of 49.2 million shares of its common stock at a price of $18.05 per share to a limited number of holders of its 5.75% Convertible Senior Notes due 2023 (the “Convertible Notes”). The Corporation used the proceeds from this closing to repurchase $427.9 million principal amount of its Convertible Notes in privately negotiated transactions.
The Corporation expects to close an additional 8.2 million shares as part of the registered direct offering on November 20, 2020. The Corporation intends to use the net proceeds from the November 20, 2020 closing to repurchase an additional $71.5 million principal amount of its Convertible Notes in a privately negotiated transaction.
Following these note repurchases, an aggregate of $627.5 million principal amount of the Corporation's Convertible Notes will remain outstanding.
Goldman Sachs & Co. LLC acted as the exclusive placement agent for the registered direct offering. PJT Partners LP served as independent financial advisor to the Corporation for the registered direct offering. A shelf registration statement relating to the shares was previously filed with the U.S. Securities and Exchange Commission (“SEC”) and is effective. The registered direct offering was made only by means of a prospectus supplement and an accompanying base prospectus. A prospectus supplement and accompanying base prospectus relating to the registered direct offering have been filed with the SEC and are available on the SEC’s website at www.sec.gov. Copies of the prospectus supplement and accompanying base prospectus relating to the registered direct offering may be obtained from Goldman Sachs & Co. LLC, Prospectus Department, 200 West Street, New York, New York 10282, telephone: 1-866-471-2526, facsimile: 212-902-9316 or by emailing prospectus-ny@ny.email.gs.com).
This press release does not constitute an offer to sell or a solicitation of an offer to buy shares of common stock or any other securities and shall not constitute an offer, solicitation or sale in any jurisdiction in which such an offer, solicitation or sale would be unlawful prior to the registration and qualification under the securities laws of such state or jurisdiction.
About Carnival Corporation & plc
Carnival Corporation & plc is one of the world's largest leisure travel companies with a portfolio of nine of the world’s leading cruise lines. With operations in North America, Australia, Europe and Asia, its portfolio features Carnival Cruise Line, Princess Cruises, Holland America Line, Seabourn, P&O Cruises (Australia), Costa Cruises, AIDA Cruises, P&O Cruises (UK) and Cunard.
Cautionary Note Concerning Factors That May Affect Future Results
Carnival Corporation and Carnival plc and their respective subsidiaries are referred to collectively in this press release as “Carnival Corporation & plc,” “our,” “us” and “we.” Some of the statements, estimates or projections contained in this document are “forward-looking statements” that involve risks, uncertainties and assumptions with respect to us, including some statements concerning the financing transactions described herein, future results, operations, outlooks, plans, goals, reputation, cash flows, liquidity and other events which have not yet occurred. These statements are intended to qualify for the safe harbors from liability provided by Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. All statements other than statements of historical facts are statements that could be deemed forward-looking. These statements are based on current expectations, estimates, forecasts and projections about our business and the industry in which we operate and the beliefs and assumptions of our management. We have tried, whenever possible, to identify these statements by using words like “will,” “may,” “could,” “should,” “would,” “believe,” “depends,” “expect,” “goal,” “anticipate,” “forecast,” “project,” “future,” “intend,” “plan,” “estimate,” “target,” “indicate,” “outlook,” and similar expressions of future intent or the negative of such terms.
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Forward-looking statements include those statements that relate to our outlook and financial position including, but not limited to, statements regarding:
| · | Pricing | · | Estimates of ship depreciable lives and residual values | ||
| · | Booking levels | · | Goodwill, ship and trademark fair values | ||
| · | Occupancy | · | Liquidity and credit ratings | ||
| · | Interest, tax and fuel expenses | · | Adjusted earnings per share | ||
| · | Currency exchange rates | · | The impact of the COVID-19 coronavirus global pandemic on our financial condition and results of operations | ||
| · | Net cruise costs, excluding fuel per available lower berth day |
Because forward-looking statements involve risks and uncertainties, there are many factors that could cause our actual results, performance or achievements to differ materially from those expressed or implied by our forward-looking statements. This note contains important cautionary statements of the known factors that we consider could materially affect the accuracy of our forward-looking statements and adversely affect our business, results of operations and financial position. Additionally, many of these risks and uncertainties are currently amplified by and will continue to be amplified by, or in the future may be amplified by, the COVID-19 outbreak. It is not possible to predict or identify all such risks. There may be additional risks that we consider immaterial or which are unknown. These factors include, but are not limited to, the following:
| · | COVID-19 has had, and is expected to continue to have, a significant impact on our financial condition and operations, which impacts our ability to obtain acceptable financing to fund resulting reductions in cash from operations. The current, and uncertain future, impact of the COVID-19 outbreak, including its effect on the ability or desire of people to travel (including on cruises), is expected to continue to impact our results, operations, outlooks, plans, goals, reputation, litigation, cash flows, liquidity, and stock price; | |
| · | As a result of the COVID-19 outbreak, we may be out of compliance with a maintenance covenant in certain of our debt facilities, for which we have waivers for the period through November 30, 2021 with the next testing date of February 28, 2022; | |
| · | World events impacting the ability or desire of people to travel may lead to a decline in demand for cruises; | |
| · | Incidents concerning our ships, guests or the cruise vacation industry as well as adverse weather conditions and other natural disasters may impact the satisfaction of our guests and crew and lead to reputational damage; | |
| · | Changes in and non-compliance with laws and regulations under which we operate, such as those relating to health, environment, safety and security, data privacy and protection, anti-corruption, economic sanctions, trade protection and tax may lead to litigation, enforcement actions, fines, penalties and reputational damage; | |
| · | Breaches in data security and lapses in data privacy as well as disruptions and other damages to our principal offices, information technology operations and system networks, including the recent ransomware incident, and failure to keep pace with developments in technology may adversely impact our business operations, the satisfaction of our guests and crew and lead to reputational damage; |
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| · | Ability to recruit, develop and retain qualified shipboard personnel who live away from home for extended periods of time may adversely impact our business operations, guest services and satisfaction; | |
| · | Increases in fuel prices, changes in the types of fuel consumed and availability of fuel supply may adversely impact our scheduled itineraries and costs; | |
| · | Fluctuations in foreign currency exchange rates may adversely impact our financial results; | |
| · | Overcapacity and competition in the cruise and land-based vacation industry may lead to a decline in our cruise sales, pricing and destination options; | |
| · | Geographic regions in which we try to expand our business may be slow to develop or ultimately not develop how we expect; and | |
| · | Inability to implement our shipbuilding programs and ship repairs, maintenance and refurbishments may adversely impact our business operations and the satisfaction of our guests. |
The ordering of the risk factors set forth above is not intended to reflect our indication of priority or likelihood.
Forward-looking statements should not be relied upon as a prediction of actual results. Subject to any continuing obligations under applicable law or any relevant stock exchange rules, we expressly disclaim any obligation to disseminate, after the date of this document, any updates or revisions to any such forward-looking statements to reflect any change in expectations or events, conditions or circumstances on which any such statements are based.
SOURCE Carnival Corporation & plc
Roger Frizzell, Carnival Corporation, rfrizzell@carnival.com, (305) 406-7862; Mike Flanagan, LDWW, mike@ldwwgroup.com, (727) 452-4538